MXS2 v Georges River Grammar School

[2023] NSWSC 529

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

MXS2 v Georges River Grammar School [2023] NSWSC 529

Hearing dates:

28 April 2023

Date of orders:

18 May 2023

Decision date:

18 May 2023

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

That the proceedings be permanently stayed.

Catchwords:

CIVIL PROCEDURE — Application for permanent stay of proceedings concerning alleged assault and sexual abuse of plaintiff by former teacher — no applicable limitation period — relevant principles — consequences of delay — where no complaint made about alleged perpetrator before his death — where relevant documents unavailable — where other relevant witness has died — whether discretion should be exercised — Civil Procedure Act 2005 (NSW), s 67 — Uniform Civil Procedure Rules 2005 (NSW), r 2.1 — proceedings stayed

LIMITATION OF ACTIONS — Torts — child abuse — whether proceedings should be permanently stayed — Limitation Act 1969 (NSW), s 6A

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 67

Evidence Act 1995 (NSW), s 140

Limitation Act 1969 (NSW), s 6A

Uniform Civil Procedure Rules 2005 (NSW), rr 2.1 42.1

Cases Cited:

Anderson v The Council of Trinity Grammar School [2018] NSWSC 1633

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27

Brigenshaw v Brigenshaw (1938) 60 CLR 336; [1938] HCA 34

BTM1 v Scout Association of Australia New South Wales Branch [2023] NSWSC 431

Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46

Moubarak bht Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102

New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4

Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37

R v Presser [1958] VR 45

R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7

Smith v The Council of Trinity Grammar School [2021] NSWSC 1592

Smith v The Council of Trinity Grammar School [2022] NSWCA 93

State of New South Wales v Plaintiff A [2012] NSWCA 248

The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292

The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78

Category:

Procedural rulings

Parties:

MXS2 (Plaintiff)
Georges River Grammar School (Defendant)

Representation:

Counsel:
Mr J Turnbull SC (Plaintiff)
Mr T Meakes (Plaintiff)
Mr D Villa SC (Defendant)
Mr J Sleight (Defendant)

Solicitors:
Beston McManis Lawyers (Plaintiff)
Thompson Cooper Lawyers (Defendant)

File Number(s):

2022/152475

JUDGMENT

1. By further amended statement of claim MXS2 seeks damages, including aggravated damages, for assault and sexual abuse by his year six teacher, Mr Zuliani, in 1997, while he was a primary school student at St Paul’s Choir School, which was then operated by St Paul’s Choir School Ltd. There is no issue about the duty of care he was then owed; that Mr Zuliani was employed at the school at the time of the alleged abuse; or that St Paul’s Choir School Ltd was later deregistered and the school is now operated by Georges River Grammar School Pty Ltd.

2. That MXS2 was so assaulted and abused is not admitted by Georges River Grammar School. It also denies that it was vicariously liable for such abuse, if it occurred.

3. This judgment deals with a motion seeking orders permanently staying the proceedings under s 67 of the Civil Procedure Act 2005 (NSW) and r 2.1 of the Uniform Civil Procedure Rules 2005 (NSW), in circumstances where there is no statutory limitation period for claims of the kind that MXS2 advances: s 6A of the Limitation Act 1969 (NSW). That section does not, however, limit the Court’s inherent, implied or statutory jurisdiction, or any other powers it has, arising or derived from the common law or under any other Act, rule of court, practice note or practice direction: s 6A(6) of the Limitation Act. There is thus no issue that the Court has a discretion to order the permanent stay which is sought.

4. The motion is supported by affidavits sworn by Georges River Grammar School’s solicitors, Mr Thompson and Ms Maker, to which various documents are exhibited. The motion is defended, MXS2 relying on his short August 2022 evidentiary statement and the documents in evidence.

5. In his statement MXS2 shortly describes his repeated assaults by Mr Zuliani, which he claims took place during class and once, on an evening at a school talent show in the school chapel. He describes himself to have been a slow learner; claims that Mr Zuliani’s assaults exacerbated his learning difficulties; caused him anxiety and trust issues and later, his abuse of painkillers to deal with his anxiety and to block out memories of the abuse; halted his career progression after he entered public office, because of trust issues he had with senior staff members; made his marriage dysfunctional, leading to its breakdown; him not having children and starting a family of his own; and also destroying his chances of a happy normal life.

6. MXS2’s statement suggests that the assaults all took place in the presence of no other adults. Some of the alleged assaults occurred in class, while other students were present, but he does not suggest that they witnessed them or that he discussed them with his classmates, or anyone else, at the time. His only later claimed disclosure of the assaults was made several years later, to two other students whom he identifies only by their first names.

7. Mr Thompson and Ms Maker’s affidavits explain the documents which have been located, as the result of the investigations which Georges River Grammar School pursued after being notified, only in 2021, of MXS2’s claims. His school file has not been located, but that of Mr Zuliani has been found. Thus documents which shed light on some matters relevant to what will be in issue at trial, are available, but none deal with the alleged assaults.

Issues

8. There was no issue between the parties about:

1. the Court having the discretion to permanently stay proceedings on an application such as this in accordance with the principles discussed in Moubarak bht Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102;

2. the principles applicable to claims such as those MXS2 makes: Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 and The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762 [2019] NSWCA 292;

3. MXS2’s claims having been made for the first time in November 2021, at a time when Georges River Grammar School was operating the school, he not ever having made a prior complaint to St Paul’s Choir School Ltd or police about the alleged abuse;

4. Mr Zuliani having died before MXS2’s complaint was made, with the result that he never had an opportunity to respond to those allegations;

5. the principal of the school and chairman of the Board of St Paul’s Choir School Ltd at the time Mr Zuliani was first employed in 1987, Father Wood, has also died;

6. MXS2’s 1996 application for admission to the school and a 1994 report from his former school have been found;

7. the principal of the school in 1997, Mr Lingard, has been located and interviewed. His recollection is limited, but includes that at the time of the alleged assaults Mr Zuliani was teaching year 6 in a portable building; what the then layout of the school was; that he could not recall any school talent show having taken place; that no complaints about physical or sexual abuse had been received about Mr Zuliani or any other teacher; and that he was aware that Mr Zuliani had resigned in 1998, following complaints by parents of other students, about his harsh teaching style;

8. some others teaching at the school at the time of the alleged assaults had been located and interviewed. Their recollections are also limited, but they were also unaware of any complaints about Mr Zuliani abusing students as MXS2 alleged and could also not remember any talent show;

9. the principal of the school in 1998, after MSX2 had left and when Mr Zuliani resigned, Mr Johnston, had also been located and interviewed. He had notes of times that Mr Zuliani had sent students to him with behavioural complaints and his account included that Mr Zuliani’s resignation had resulted from parental complaints about his treatment of other students. But he had also not heard of allegations of conduct of the type MXS2 alleged about Mr Zuliani; and

10. contemporaneous documents record a series of complaints made about Mr Zuliani in 1998, which did not involve allegations of the kind MXS2 advances; advice being sought; and a decision made to suspend Mr Zuliani, after which he resigned.

    9. Like in Moubarak and other cases decided subsequently in relation to applications for permanent stay of proceedings such as this, the central issue lying between the parties is whether, in all these circumstances, a fair trial can be conducted, some 26 years after the assaults which MXS2 seeks to pursue and where he also advances an allegation of negligence a decade earlier, at the time that Mr Zuliani was employed. Or whether such a trial would involve an abuse of process.

The parties’ cases

10. The case advanced for Georges River Grammar School was that MXS2 having claimed that the alleged assaults occurred over 26 years ago in the presence of no other adults and Mr Zuliani, the only possible contradictor having died before he disclosed his allegations, it could not deny the claimed assaults, only put MXS2 to the proof of them. It could thus not meaningfully engage at the trial on the critical issue.

11. Given that the available documents contained later complaints about Mr Zuliani’s conduct, there was evidence of the existence of a system of recording complaints about a teacher implemented by the school. But none of the complaints received concerned allegations of sexual abuse. There had never been an opportunity to put this to Mr Zuliani, with the result that it would bring the administration of justice into disrepute, for the trial to proceed. This was exacerbated by the claimed negligence in his employment, over a decade earlier, which could also not be met by relevant evidence.

12. Reliance was placed on The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 where an appeal against a refusal to grant a permanent stay where the alleged perpetrator had also died was upheld, even though an application for special leave has been granted by the High Court in that case.

13. This case wasn’t like that dealt with in Lismore, where the perpetrator had also died, because there a credible account was given by the plaintiff which was supported by the similarity of accounts given by other victims, as well as by documents which established the knowledge which the perpetrator’s superiors had of him being a paedophile, resistant to treatment. In this case there was no contemporaneous corroboration of the alleged assaults, which was not supported by enquiries of other available staff.

14. In the result, without the evidence of Mr Zuliani, Georges River Grammar School could not deal meaningfully with the case MXS2 sought to advance and would not have a real opportunity to participate in and contest the major and necessary part of the case brought against it in relation to the alleged assaults. That would have the result of making it liable for the criminal conduct of another, about which it had no information to meet the claims advanced. Any finding of such conduct in the absence of the alleged perpetrator would thus bring the administration of justice into disrepute.

15. Further, one particular of negligence advanced related to the engagement process undertaken when Mr Zuliani was employed in 1987, which it was claimed to have involved negligence in the interview process, which did not ensure that his selection was “appropriate for the protection of the welfare of the students”.

16. No records that relate to Mr Zuliani’s recruitment had been found and Father Toby Wood, both the Chairman of the Board of Governors for the school and the then principal, who might have been able to shed light on this claim, had also died. In the result no evidence to deal with this aspect of the claim could be marshalled, that supporting the conclusion that it was also not possible for a fair trial to be conducted of this aspect of the case. That, too, supported the conclusion that the proceedings should be permanently stayed.

17. The case advanced for MXS2 was that the only matter of relevance on this motion was the death of Mr Zuliani. It being for him to establish that the school did not take reasonable care for his safety, including by employing Mr Zuliani.

18. The investigations Georges River Grammar School had conducted had not revealed the making of any complaints about Mr Zuliani concerning sexual or physical assaults. That evidence could have been led, even if Mr Zuliani was alive, as could evidence about the setup of the school and his classroom, where he could be seen by others, about which there was available evidence, that supporting a denial of the claim.

19. But it was in the nature of such conduct that the perpetrator does not pursue it in circumstances where it is likely to be discovered, making such evidence of little relevance on this application.

20. There was no documentary evidence which would support the suggestion that Mr Zuliani was involved in the activities alleged against him. If he were alive, he would no doubt deny them, but that was unlikely to be able to affect the allegations, even accepting that the precise times and dates of the alleged offences could not be detailed. In these circumstances, MXS2 was thus necessarily put to proof of his allegations.

21. Georges River Grammar School was entitled to rely on the lack of complaint in resisting MXS2’s case and it was for him to establish the school’s vicarious liability for the assaults he complained about. These were not matters about which Mr Zuliani could give any evidence.

22. It was also relevant that the available records were full of evidence about Mr Zuliani’s teaching style and complaints received about and observations made of his teaching. There was also evidence of legal advice having been sought by the school about complaints made about him at the time he resigned, some parents having indicated they might take legal action against the school over him, including in one case for mental abuse.

23. These documents provided evidence of a kind which could establish vicarious liability, Mr Zuliani’s employment having provided him the opportunity and occasion to commit the wrongful acts MXS2 complained about, given the authority, power, trust, control, and intimacy with his students which it permitted: Prince Alfred College Inc at [81]-[82].

24. In all these circumstances, Mr Zuliani’s death did not provide an insurmountable obstacle to the conduct of a fair trial, given the evidence which was available, including as to the layout of the school and Mr Zuliani’s classroom and the school’s failure to properly supervise him, matters about which the then school principal and others can give evidence. It was accepted that they could not give evidence about the claim that one of the assaults took place at a talent show, none of them remembering such a show taking place at the school, but that would not make the trial unfair.

25. While the investigations pursued had not contacted two students referred to by MXS2, that was hardly burdensome, given information which existed. In the result, neither that, nor the fact that the result of the proceedings he had brought might be a finding that Mr Zuliani had engaged in serious criminal conduct, despite him not being able to give evidence, could bring the administration of justice into disrepute.

26. To the contrary, findings about such conduct often have to made by courts.

The permanent stay must be granted

27. I am satisfied that the stay sought must be granted in the particular circumstances of this case.

The applicable principles

28. The question of whether a permanent stay is warranted always turns on the particular facts of a case. In resolving what lies in issue between the parties it is necessary, however, to have regard to what was decided in Moubarak.

29. There the defendant, the plaintiff’s uncle, was still alive some 42 or 43 years after the alleged assaults, but then suffering such severe dementia, that the Court concluded that a fair trial could not be conducted: at [88]. That turned on whether the conduct of such a trial would involve an abuse of process which the interests of the administration of justice would not permit: State of New South Wales v Plaintiff A [2012] NSWCA 248 at [15]; Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46, discussed in Moubarak at [70]-[71].

30. The propositions which arose to be considered were identified in Moubarak at [71] to be:

1. the onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant;

2. a permanent stay should only be ordered in exceptional circumstances;

3. a permanent stay should be granted when the interests of the administration of justice so demand;

4. the categories of cases in which a permanent stay may be ordered are not closed;

5. one category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive;

6. the continuation of proceedings may be oppressive if that is their objective effect;

7. proceedings may be oppressive where their effect is seriously and unfairly burdensome, prejudicial or damaging;

8. proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party; and

9. proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people.

31. There being no applicable limitation period to claims of child sex abuse, the certainty that would otherwise be secured by a limitation period is subordinated to claims being permitted to be made at a time of the claimant’s choosing. This means that a plaintiff will generally not be able to be criticised for any delay in bringing such a claim, at least where it is not credibly suggested that the delay, by reference to the passage of time, was deliberate or in some way avoidable. Nor is there any need for an explanation for any delay to be given: at [74].

32. But the passage of time and its effect since the alleged events are relevant to the exercise of the Court’s discretion on a stay application: at [75]-[76].

33. Delay is less likely to be a critical factor in a case which turns predominantly on documentary evidence. But will be more acute “where a trial is exclusively or heavily dependent on oral evidence and the quality of witnesses’ memory and recollection” is in issue. That flows from the impoverishment of the evidence, given “[t]he fallibility of human memory and the capacity of the human mind for ex post rationalisation of events long since passed”: at [77].

34. Reference was also made at [85] to the decision of Bryson JA in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [54], in circumstances where four decades had passed since the events there in issue. His Honour had observed that the Limitation Act cannot “close the court's eyes to the practical inability of reaching a decision based on any real understanding of the facts, and the practical impossibility of giving the defendants any real opportunity to participate in the hearing, to contest them or, if it should be right to do so, to admit liability on an informed basis.” In the result it was accepted that the trial could not in that case, be just.

35. But a perfect trial is not required, and a trial may be fair, even in the absence of a witness, as the result of death or illness: at [89] of Moubarak.

36. It was the fact that it was the defendant in Moubarak whose evidence would go to a critical aspect of liability, which drove the conclusion that the trial could not be fair, the Court having considered the principles espoused in R v Presser [1958] VR 45 in a civil context, directed as they are to the minimum requirements for a fair trial: at [97]-[110].

31. In R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 those principles were explained at [298] to require that “the accused can understand and follow the proceedings in each of its facets, can give appropriate instructions, and can present a proper defence to the charge, he or she is to be regarded as fit to be tried”. That “the accused may have done so in a better way, had suitable medical treatment or medication been provided, or had that accused possessed greater intelligence or acuity of mind” was not considered to be relevant to the question of fitness.

32. It was concluded that while Presser could not be translated directly to civil proceedings such as this, the principles were relevant to a consideration of the circumstances required for a fair trial: at [107]. In the result it was concluded that the defendant was not fit to face a criminal trial because the minimum requirements for a fair trial would not be present, and it would, “offend common sense simultaneously to maintain that the defendant could secure a fair civil trial in relation to identical factual allegations”: at [108].

33. In this case the alleged perpetrator, Mr Zuliani, is not the defendant nor alive and so the Presser principles do not arise for consideration.

34. Reference was also made to other cases, including Anderson v The Council of Trinity Grammar School [2018] NSWSC 1633. There a claim of vicarious liability for sexual assaults by a teacher, for some of which he had been convicted, was advanced over 40 years later. That application for permanent stay was refused, given the availability of evidence from the plaintiff and his parents; documentary evidence, including that held by police; and that the teacher was available to give evidence, as were other teachers.

35. The appeal in Anderson was nevertheless upheld, given the death of various witnesses and the absence of relevant records, which had the result that Trinity was not in a position to deal meaningfully with alleged breaches of its non-delegable duty, including as to the claimed non-existence of systems or procedures to protect students from abuse. A continuation of the proceedings was there held to be unfairly oppressive and burdensome in the sense described in Batistatos and Moubarak, with the result that a permanent stay was granted: The Council of Trinity Grammar School v Anderson.

36. The Court also concluded that a permanent stay was warranted in Moubarak, in circumstances explained at [163]-[171]:

1. before the onset of dementia, Mr Moubarak had never been confronted with the detail of the allegations of sexual assault, with the result that there was no meaningful record of his response, unlike other cases, where there was no doubt that the physical assaults had occurred. Indeed, in Anderson, a criminal conviction had been obtained;

2. he had advanced dementia before the report of the alleged assaults to the police in 2015, so that there was no statement obtained from him nor any police interview conducted;

3. he had advanced dementia at the time of the commencement of proceedings;

4. because of the nature of the alleged assaults, the occurrence of which were in issue, there were no eyewitnesses to them, making the value of the enquiries of others of extremely limited potential significance and rendered even less likely to be of value, given the passage of time;

5. because of his mental condition, Mr Moubarak was necessarily unable to give instructions about the allegations;

6. he was also, as a result, unable to give evidence in the proceedings;

7. he was also unable to give instructions during the course of the trial;

8. the events had occurred approximately 45 years ago, and other potentially relevant witnesses were now dead or unavailable, although this alone would be unlikely to warrant a permanent stay of proceedings; and

9. there was no credible suggestion that documentary evidence may be in existence that would bear on the likelihood or otherwise of the alleged sexual assaults having occurred.

43. It was also concluded that the forensic steps open to Mr Moubarak’s tutor in defending the proceedings, such as cross-examining Ms Holt, exploring potential inconsistencies in her accounts and others’, and cross-examining witnesses Ms Holt might call would not make up for fact that Mr Moubarak’s mental condition, leaving him utterly in the dark about the allegations made against him and quite unable to give instructions in relation to them, could be relieved by the presiding Judge during the conduct of the trial, established the necessary manifest unfairness: at [158]-[159].

44. I am satisfied that similar considerations in this case, drive the same conclusions.

The consequences of the passage of time in this case

45. It is for Georges River Grammar School to establish that in all of the circumstances, which includes the availability of some witnesses who could give relevant evidence and the existence of some documentary evidence, the necessary exceptional circumstances exist, making continuation of the proceedings manifestly unfair to it. Further, that their continuation would bring the administration of justice into disrepute.

46. MXS2 cannot be criticised for the passage of time since the alleged assaults before he raised his complaints. Nor does that delay, of itself, warrant the grant of a permanent stay. But the consequences of that passage of time are relevant to the question of whether the criteria discussed in Moubarak have been satisfied. They include that available witnesses have no memory of any talent show.

47. The death of Mr Zuliani and Father Wood alone does not establish the required unfairness, but the consequences of their deaths are also relevant. As is that none of the documentary evidence deals with the alleged assaults, or it appears, a talent show and that other relevant documents, including MXS2’s file, which would have shed light on his claims, have not been found.

The alleged negligence in the employment of Mr Zuliani

48. What has to be resolved does not depend on difficulties which MXS2 will face at trial, but in my view they are not irrelevant to resolving what lies in issue between the parties.

49. That is because whether there can be a fair trial is plainly a predictive exercise. Logically, account must thus sensibly be taken of the requirements of s 56 of the Civil Procedure Act, which requires both the Court and the parties to facilitate the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings.

50. Because of the nature of the allegations which he advances, s 140 of the Evidence Act1995 (NSW) will require that MXS2’s evidence be approached with care, in the way discussed in Brigenshaw v Brigenshaw (1938) 60 CLR 336; [1938] HCA 34, notwithstanding that Mr Zuliani is not available to be cross-examined. But MXS2 can give no evidence about Mr Zuliani’s employment and there is no suggestion that anyone else could, or that available documents will shed light on this.

51. The death of Father Wood thus appears, on the evidence, to mean that there is no evidence available about the circumstances of Mr Zuliani’s employment at the school, which MXS2 claims involved negligence. Without such evidence MXS2 will be unable to prove the negligence he claims then occurred.

52. Adherence to the s 56 obligations imposed on MXS2 and his legal representatives, I consider, thus makes it unlikely that the alleged negligence in the employment of Mr Zuliani will be an issue pursued at trial, as senior counsel for MXS2 accepted.

53. That is because without any relevant documentary or other evidence about the circumstances of Mr Zuliani’s employment, MXS2 will have no prospect of meeting the onus which falls on him to prove this aspect of his case. It also follows that even if this claim was pressed, without such evidence, there would be no case for Georges River Grammar School to answer at trial.

54. Were it otherwise, Father Wood’s death would support the conclusion that continuation of the proceedings would be manifestly unfair for Georges River Grammar School and bring the administration of justice into disrepute.

The other claimed negligence

55. I have reached a different conclusion about the consequences of Mr Zuliani’s death and other problems resulting from the passage of time.

56. The claimed events occurred long ago, but not as long ago as some other claimed historical sexual abuse cases which have proceeded, after applications for permanent stay have been refused. But unlike other cases which have proceeded, in this case, like in Moubarak, because of the absence of any complaint by MXS2 before Mr Zuliani died, there has never been any opportunity for Mr Zuliani to give Georges River Grammar School any account about the matters MXS2 pursues in these proceedings. Nor do any available documents or other witnesses who worked at the school at the relevant time shed any light on these claims.

57. Unlike in Moubarak, Mr Zuliani is not a party to the proceedings and accordingly, it would not be he who would give instructions for Georges River Grammar School about the conduct of its case. But the light Mr Zuliani could have shed on MXS2’s claims, had they been revealed before his death, would necessarily have been very pertinent both to the instructions which it would give in relation to its defence of MXS2’s claims and to the cross-examination of MXS2.

58. The importance of Mr Zuliani’s evidence to the fairness of the trial, thus cannot be doubted.

59. It is of course possible that if MXS2 had made his complaints before Mr Zuliani’s death, he might have admitted the alleged assaults. But it may be accepted that it is more likely that he would not have made such admissions, given the serious criminality involved.

60. It follows that if available, it is likely that Mr Zuliani would have been called and cross-examined he, it appears, being the only other person who could have given evidence about the alleged assaults. He would also have been able to shed light on MXS2’s evidence about other relevant matters, such as that he was a poor student and what Mr Zuliani required of him in class, which available evidence sheds no light on.

61. The result would then have been not only that Georges River Grammar School could have met the critical aspect of the case MXS2 advances against it with positive evidence called from Mr Zuliani, an opportunity which it no longer has. But his evidence would also have been relevant to the assessment of the credibility and reliability of MXS2’s evidence, which will necessarily arise to be considered at trial, even absent evidence given by Mr Zuliani, especially given the passage of considerable time since the alleged events.

62. That Georges River Grammar School is now not able to speak to or call Mr Zuliani at trial, is thus undeniably relevant to the question of whether there can still be a fair trial in his absence, it not being able as it otherwise would, to depend on his evidence to rebut the critical claims advanced against it. It is now not even able to obtain any information about how he would have responded, had MXS2’s allegations been revealed before his death.

63. I am satisfied that it must thus be accepted that like the tutor in Moubarak, as the result of the timing of Mr Zuliani’s death, before MXS2’s allegations were revealed, Georges River Grammar School is now left utterly in the dark about the crucial matters MXS2 alleges against it in relation to the claimed assaults. This unarguably supports the conclusion that any trial would now be manifestly unfair.

64. Also, necessary to take into account is that:

1. there will be no evidence of the alleged sexual assaults, apart from that given by MXS2. His evidentiary statement does not suggest that others witnessed the alleged assaults, even though he claims that most of them occurred in class;

2. MXS2’s evidence will be that he later told no-one else about the alleged assaults other than, he claims, his classmates Nick and Lauren, whose surnames he does not remember, a few years later. Unless they are located and called, MXS2’s evidence about the assaults will thus be entirely unsupported, unlike other cases where complaints had earlier been made to others, including police, or treating medical practitioners, or where there had been relevant prior convictions;

3. there is available evidence from the two former principals and other teachers working at the school at the time of the alleged assaults about the layout of Mr Zuliani’s classroom; that there were never any allegations made about him or observations of behaviour of the kind about which MXS2 complains; and that they do not remember a talent show; and

4. Mr Zuliani’s resignation in 1998 followed complaints disclosed in the documents about his inappropriate treatment of other students in class, such as inappropriate punishment, by making a student sit facing a wall and his sarcastic and belittling treatment of students.

65. While the circumstances of Mr Zuliani’s resignation may thus be relevant to what lies in issue, because it sheds light on how teachers were supervised at the time and complaints about them were dealt with, this will not establish the sexual assaults MXS2 complains about.

66. If MXS2’s evidence that the assaults occurred was accepted, such evidence could also support his case that Mr Zuliani’s criminal acts were committed using or taking advantage of the position in which he had been placed vis-à-vis MXS2; that thereby giving occasion for his wrongful acts; and with the result, vicarious liability for them, because of the position of power, intimacy, authority, and control of students in which he had been placed.

67. But that would arise to be considered in a context where a school authority is not always liable for damage for the sexual abuse of a student by a staff member, that depending on all the proved facts and circumstances: New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4.

68. Further, in order to succeed on the basis of a non‑delegable duty, it is necessary for a plaintiff to show that the authority breached its duty to take reasonable care for his or her safety “by, for example, not taking reasonable care in employing [the teacher] or supervising his activities.” Such allegations thus require a consideration of the manner in which the school operated at the time: The Council of Trinity Grammar School v Anderson at [44].

69. What is also required when considering the claims of vicarious liability is a consideration of the role and responsibilities given to Mr Zuliani on each occasion of alleged sexual abuse: BTM1 v Scout Association of Australia New South Wales Branch [2023] NSWSC 431 at [151] applying Prince Alfred College Inc at [81], [84] and [128].

70. In this case both the two principals and other teaching staff who have been located could give evidence about some of these matters and some relevant documents have also been located. But not all.

71. Importantly, MXS2 claims that the most serious of the alleged abuse occurred at the after school talent show, which other staff do not remember occurring. It follows that even if there was such a show, on the information now available to Georges River Grammar School, it can advance no case about Mr Zuliani attending the show, let alone having any role or duties to perform there. The passage of time thus has the result that it is also left entirely in the dark, not only as to whether such a show took place, but if it did, that his attendance was as part of his duties, what his role he may then have been and whether he stepped away from or went beyond it.

72. That difficulty also clearly supports the conclusion that any trial would now be manifestly unfair to Georges River Grammar School.

73. While each case turns on its own facts, it is also instructive to observe that not dissimilar circumstances to those which here arise to be considered, arose in Smith v The Council of Trinity Grammar School [2021] NSWSC 1592.

74. There the necessary abuse of process was established in circumstances where the alleged assaults by a Reverend Sanders had occurred in 1981, but complaint was made to the school for the first time in 2017, after the death of the principal at the time, others who could have given relevant evidence, and the alleged abuser. In that case, Mr Smith had also not previously reported his experiences to anyone, and pertinent records could also not be located.

75. While other employees of the school who were still alive would have been able to give relevant evidence, Harrison AsJ still concluded that the school was unable to meaningfully deal with Mr Smith’s claim. The result was the conclusion that a continuation of the proceedings would be unjustifiably oppressive and manifestly unfair, that establishing exceptional circumstances which warranted a permanent stay: at [189].

76. Leave to appeal this decision was refused: Smith v The Council of Trinity Grammar School [2022] NSWCA 93, the Court being satisfied that the applicable principles had been correctly applied and that a fair trial was either not possible, or so unfairly and unjustifiably oppressive as to constitute an abuse, in accordance with what was said in Moubarak. That did not turn merely on the death of the alleged perpetrator, but also on the death or absence of other important witnesses who might enable the Council to defend the claims and the absence of any suspicion attaching to the Reverend during his lifetime: at [27].

77. Likewise in this case there was no suspicion about Mr Zuliani having committed the assaults MXS2 alleged until after his death. Further, while some witnesses could also give some relevant evidence in this case, the circumstances are also such that a fair trial of his claims is no longer possible and would be so unfairly and unjustifiably oppressive for Georges River Grammar School, as to constitute an abuse of process, given how the passage of time, the death of Mr Zuliani and the absence of pertinent contemporaneous documents, adversely affect its ability to defend his claims.

78. MXS2 relied on the reasoning in BTM1, where allegations of sexual abuse between 1979 and 1982 were pursued in circumstances where the repeated abuse was admitted, the perpetrator having been convicted in 2020 of 24 related charges, but breach of duty of care and claimed vicarious liability defended, in circumstances where the perpetrator was alive, some pertinent witnesses had died, but others were available to be called to give evidence. But still it was there concluded that the defendants could not meet the case advanced, because of the absence of reliable evidence about matters such as the supervision, policies, and protocols in place and how the perpetrator was interviewed, investigated supervised and monitored.

79. There are similar problems in this case.

Conclusion

80. In all the circumstances of this case I am thus also satisfied that a permanent stay of the proceedings must be granted, the necessary exceptional circumstances having been established and that being what the interests of the administration of justice require.

81. Their continuation, I am satisfied, given the consequences of the passage of time and Mr Zuliani’s death for the defence of MXS2’s claims would also be entirely unfair to Georges River Grammar School, given MXS2’s long delay in making a complaint, and then only after Mr Zuliani’s death, at a time when pertinent records cannot be located and available witnesses do not remember claimed events.

Orders

82. For these reasons I order that the proceedings be permanently stayed.

83. Unless the parties seek to be heard on costs, in which event they should approach within fourteen days and provide short written submissions, I will make the usual costs order under the Uniform Civil Procedure Rules. Namely, that MXS2 bear Georges River Grammar School’s costs, as agreed or assessed.

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Amendments

18 May 2023 - Para 44 consideration becomes considerations

Decision last updated: 18 May 2023