K1 v The Trustees of the Marist Brothers
[2017] NSWSC 508
•26 April 2017
Supreme Court
New South Wales
Medium Neutral Citation: K1 v The Trustees of the Marist Brothers [2017] NSWSC 508 Hearing dates: 26 April 2017 Decision date: 26 April 2017 Jurisdiction: Common Law Before: McCallum J Decision: Proceedings stayed pending conclusion of criminal trial against the tenth defendant
Catchwords: PROCEDURE – claim for damages for sexual assault – alleged offender a defendant to the proceedings – where alleged offender also facing criminal charges – application by defendants to have civil proceedings stayed pending conclusion of criminal trial – interests of justice best served by staying civil proceedings pending conclusion of the criminal trial Legislation Cited: Children (Criminal Proceedings Act) 1987 (NSW), s 15A Category: Procedural and other rulings Parties: K1 (plaintiff)
The Trustees of the Marist Brothers (first defendant)
Jeffrey Crowe as executor of the estate of the late Kieran Geaney (second defendant)
Jeffrey Crowe as executor of the estate of the late Robert Goodwin (third defendant)
Geoffrey Joy (fourth defendant)
Ronald Perry (fifth defendant)
John Thompson as executor of the estate of the late Alman Dwyer (eighth defendant)
Alexis Turton (ninth defendant)
Christopher Wade (tenth defendant)
Ernest Houston (eleventh defendant)
Kelvin Canavan (twelfth defendant)Representation: Counsel:
Solicitors:
JB Masur (plaintiff)
M Avenell (defendants)
Porters Lawyers (plaintiff)
Makinson d’Apice Lawyers (defendants)
File Number(s): 2016/130105 Publication restriction: Please note that the publication of the plaintiff’s name or any information that identifies the plaintiff is prohibited because the plaintiff is the alleged victim of offences alleged to have been committed when the plaintiff was a child: see s 15A of the Children (Criminal Proceedings Act) 1987 (NSW)
JUDGMENT
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HER HONOUR: Before the Court is a notice of motion filed by the defendants to these proceedings seeking a stay of the proceedings. The claim brought by the plaintiff (referred to by the anonymisation “K1”) is for damages arising from his alleged sexual assault by the tenth defendant when the tenth defendant (then known as Brother Christopher) was a Marist Brother. K1 alleges Brother Christopher sexually assaulted him when he was a young student at a Marist Brothers school. The other defendants to the proceedings are sued either as being vicariously liable for the acts of Brother Christopher or for breach of a non-delegable duty of care owed to K1.
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Brother Christopher is due to stand trial in the District Court for offences allegedly committed against K1 and another boy with a date for trial fixed for 29 May 2017. In those circumstances, the defendants seek an order that these proceedings be stayed until the completion of the criminal trial. The application is neither opposed nor consented to by K1.
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The application is supported by affidavits of Tracey Dunford sworn 10 November 2016 and 20 February 2017. The affidavits annex such material from the police brief against Brother Christopher as has been obtained by the defendants on subpoena to the DPP. That material reveals that central to the civil proceedings before this Court will be the establishment of the allegations against Brother Christopher, who has evidently made no admissions and, indeed, no statement to any authority concerning his involvement in the alleged acts.
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There is also before the Court a letter from Brother Christopher’s solicitor confirming that no statement has been made by Brother Christopher to the police, the Director of Public Prosecutions, the Royal Commission into Institutional Responses to Child Sexual Abuse or any other agency or body. The letter confirms that Brother Christopher will not be providing any statement or any information about the allegations made by the plaintiff before the criminal trial.
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In the circumstances, the interests of justice are plainly best served by allowing the criminal proceedings to be heard before requiring the defendants to defend the civil action. To require the tenth defendant to answer the civil allegations during a period when he has a right to remain silent, and has exercised that right, in response to the criminal allegations could work an injustice to him and, accordingly, to all of the defendants. Deferral of the civil proceedings is also in the best interests of the community, including K1, in that any impairment of the tenth defendant’s entitlement to due process in the criminal proceedings could impair the prosecution of the charges against him.
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Accordingly, I am satisfied that it is appropriate to grant the stay sought. Having regard to the age of the allegations, which relate to the events some decades ago, in 1980, it is preferable for the civil proceedings to proceed as promptly as possible subject to that constraint.
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In the circumstances, I propose to grant a short stay of the proceedings and to bring the matter back before me within a short period after the anticipated conclusion of the criminal trial.
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For those reasons, I make order 1 sought in the motion and stand the proceedings over before me on 10 July 2017 at 9.30 am.
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Decision last updated: 02 May 2017
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