Peters v Trustees of the Marist Brothers

Case •

[2023] NSWSC 475

•

05 May 2023

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Peters v Trustees of the Marist Brothers [2023] NSWSC 475
Hearing dates: 10 March 2023
Date of orders: 5 May 2023
Decision date: 05 May 2023
Jurisdiction:Common Law
Before: Chen J
Decision:

(1)   Order the defendant’s notice of motion, filed 25 November 2022, be dismissed.

(2)   Order the defendant to pay the plaintiff’s costs of, and incidental to, the defendant’s notice of motion filed 25 November 2022.

(3)   Direct the parties, on or before 12 May 2023, 5 pm, take steps to have the matter listed for directions and case management in the Institutional Abuse List.

Catchwords:

CIVIL PROCEDURE – application for permanent stay of proceedings – historical child sexual abuse – alleged perpetrator deceased in 2022 – whether the defendant undertook all reasonable enquiries prior to alleged perpetrator’s death – whether proceedings would be oppressive or bring administration of justice into disrepute

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Limitation Act 1969 (NSW)

Limitation Amendment (Child Abuse) Act 2016 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

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

Connellan v Murphy [2017] VSCA 116

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Gorman v McKnight (2020) 19 ASTLR 181; [2020] NSWCA 20

Mason v Demasi [2009] NSWCA 227

Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102

Patsantzopoulos by his tutor Naumov v Burrows [2023] NSWCA 79

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

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

Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Category:Principal judgment
Parties: Mark Peters (a pseudonym) (plaintiff)
Trustees of the Marist Brothers (defendant)
Representation:

Counsel:
Mr S E McCarthy (plaintiff)
Mr N Polin SC (defendant)

Solicitors:
Koffels Solicitors and Barristers (plaintiff)
Carroll & O’Dea Lawyers (defendant)
File Number(s): 2021/334681
Publication restriction:

There is to be no reporting of any individual students or their family members.

A pseudonym is to be used for alleged victims of child sexual assault.

JUDGMENT

Introduction

  1. Francis William Cable (‘Cable’), a convicted sexual offender, died in custody on 12 September 2022. Cable had, since 2015, been imprisoned following his convictions for sexually abusing young boys whilst he was a teacher at various Marist Brothers schools.

  2. Before Cable’s death, on 23 October 2020, Mark Peters (a pseudonym – ‘the plaintiff’) notified the Trustees of the Marist Brothers (‘the Marist Brothers’ or ‘the defendant’) of his intent to bring a civil claim against them arising out of sexual abuse that he alleges was inflicted upon him whilst he was a student, and Cable was a teacher, at Marist College, Kogarah in 1969-1970.

  3. Following this notification of an intended claim, the Marist Brothers took no step to make contact with Cable, and to raise what was alleged with him: it says that, because a member of the Marist Brothers “leadership team” made an unsuccessful attempt to speak with Cable in 2015 – in connection with an unrelated matter – the Marist Brothers decided that any further attempt to contact Cable would be futile.

  4. The plaintiff filed a statement of claim in this Court on 24 November 2021 seeking to recover damages as a consequence of the alleged abuse.

  5. Following the commencement of proceedings, the Marist Brothers still took no step to make contact with Cable, and to raise what was alleged in that claim with him. Indeed, it did not do so at any time before Cable’s death.

  6. Given the action for damages relates to “personal injury to a person resulting from an act or omission that constitutes child abuse of the person”, there is no limitation period applicable to proceedings that the plaintiff has commenced: s 6A(1) of the Limitation Act 1969 (NSW). Notwithstanding, the Marist Brothers seek a permanent stay of the claim. Its essential contention is that, in consequence of the death of Cable, a fair trial of the plaintiff’s action is not possible.

  7. For reasons that follow, I do not accept that contention.

A short statement of the defendant’s application

  1. This is an application by the defendant for a permanent stay, pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (’the CPA’),[1] of proceedings brought by the plaintiff against the Trustees of the Marist Brothers – being the entity named as the proper defendant who has assumed the responsibilities of the Marist Brothers, an unincorporated association who operated the school known as Marist College, Kogarah, NSW.

    1. The defendant’s notice of motion sought, in the alternative, an order pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005, but during submissions the defendant confirmed that it only sought relief under s 67 of the CPA.

  2. Shortly stated, by statement of claim filed 24 November 2021 (‘the SOC’), the plaintiff alleges that he has developed psychiatric injury resulting from episodes of sexual abuse – perpetrated upon him by Cable, a schoolteacher at the school – that occurred in the period 1969-1970 whilst he was enrolled as a student in years 5 and 6.

  3. The essential submission of the defendant is that for a range of reasons – including the fact that Cable died in 2022 and that the events giving rise to the claim occurred over 50 years ago – it would be manifestly unfair to allow the trial to proceed, and the proceedings should be permanently stayed.

The removal of any limitation period for child abuse cases

  1. Given the alleged conduct arises some 50 years ago, and proceedings were only commenced by statement of claim filed on 24 November 2021, a short explanation of the plaintiff’s entitlement to bring these proceedings is in order.

  2. In relation to damages for personal injury founded on tort that accrue before 6 December 2002, a six-year limitation period applies running from the accrual of that cause of action: s 14(1)(b) of the Limitation Act. Where the injured party is a minor, the limitation period is suspended until that party attains the age of 18 years: ss 11(3) and 52 of the Limitation Act.  Thereafter, time commences to run.

  3. Thus, ordinarily, a claim of this kind would be time barred by operation of s 14(1)(b) of the Limitation Act. That is no longer the case. By amendments to the Limitation Act, introduced by the Limitation Amendment (Child Abuse) Act 2016 (NSW), that commenced on 17 March 2016 (and operate retrospectively), there is no limitation period applicable to proceedings where the action for damages relates to “personal injury to a person resulting from an act or omission that constitutes child abuse of the person …”: s 6A(1) of the Limitation Act. No question arises here about whether the allegations of the plaintiff are of that kind; the defendant’s application, by accepting that no limitation period applies, accepts that it is.

  4. A further matter should also be mentioned. Section 6A(6) of the Limitation Act “does not limit” the inherent or statutory jurisdiction of the Court: as the Note to the section provides:

… this section 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.

  1. Thus the entitlement of the defendant to pursue a stay has been expressly preserved by s 6A(6): Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [188] (‘Moubarak’); Gorman v McKnight (2020) 19 ASTLR 181; [2020] NSWCA 20 at [4] (‘Gorman’).

The evidence relied upon by the parties

  1. The defendant, in support of the orders sought, relies upon affidavits of Cameron Lee affirmed 25 November 2022 and 7 March 2023 and an affidavit of Martin Slattery sworn 7 March 2023.

  2. The plaintiff, who resists the orders, relies upon affidavits of Gregory Choat affirmed 11 July 2022 and 24 February 2023.

  3. Before dealing with the specific grounds raised by the defendant that are argued to justify the Court staying the plaintiff’s proceedings, I will address the background facts and, thereafter, set out the relevant principles that apply to the exercise of the power to grant a stay of proceedings.

Background facts

  1. The background facts are divided into two parts. The first part explains the background to, and the nature of, the plaintiff’s claim against the defendant. The second part deals with the facts that are particularly relevant to the defendant’s application. What follows reflects my findings on them.

The events giving rise to the claim and the claim made

  1. The plaintiff, who was born in 1958, attended the Marist College, Kogarah (or ‘the school’) between around 1969 to 1972. In that period, he was in years 5 to 8. In year 9, the plaintiff transferred to James Cook High School where he completed part of the year, but left school when he turned 14 years and 9 months.

  2. By his statement of claim, the plaintiff alleges that in 1969 and/or 1970 he was sexually abused by Cable – a teacher at the school, who was also known as Brother Romuald – on at least ten occasions: at that time the plaintiff was in year 5 or 6 (SOC, par 8).

  3. The alleged conduct falls into two distinct circumstances which are said to have been repeated several times by Cable. First, the plaintiff alleges that on at least six occasions, he was instructed to stand next to Cable as he sat in his chair and Cable would then “put his hand onto the plaintiff’s posterior” and “Cable then ran his hand up and down the plaintiff’s genitals through his school trousers”: SOC, pars 8(a)-(d). Secondly, the plaintiff alleges that on at least four occasions while he was serving detention supervised by Cable, Cable “put his hands up through the leg of the plaintiff’s shorts, or down into his trousers” and “fondled/masturbated the plaintiff’s genitals and rubbed his posterior”: SOC, pars 8(e)-(h).

  4. These allegations are repeated in an unsigned evidentiary statement – see pars 13-21 – that was served upon the solicitors for the defendant as an attachment to the statement of particulars filed on 24 November 2021. It is also repeated in the evidentiary statement filed in the proceedings dated 23 February 2023, pars 13-21 – which was tendered by the plaintiff on the defendant’s application.

  5. The plaintiff sues the defendant in negligence – alleging direct and vicarious liability. The claim was accepted by each party to be essentially as follows:

  1. That the defendant held actual or constructive knowledge of the fact that Cable was sexually abusing young boys prior to the events subject to the claim, with the consequence that the defendant failed to take steps to adequately respond by removing him and permitted him to continue to teach; and

  2. The defendant is vicariously liable for the tortious conduct of Cable because the alleged acts occurred within the course of his employment with the defendant.

Particular issues of fact relevant to the defendant’s application.

  1. The defendant accepts that Cable, who was born on 2 May 1932, joined the Marist Brothers in 1952 (Lee affidavit 25 November 2022, par 21(a)), where he taught at a number of their schools – including Kogarah – until December 1970, when he left the Order: it "admits that between January 1968 and December 1970 Cable was a member of the Marist Brothers and engaged as a teacher at the school” (defence filed 22 April 2022, par 7(b)).

  2. Notwithstanding what was admitted in the defence, the Royal Commission into Institutional Responses to Child Sexual Abuse found that in 1978 “Cable left the Order to resume a secular life” (‘the Royal Commission’). That finding is consistent with the defendant’s evidence relied upon in this application: Lee affidavit 25 November 2022, par 21(a).

  3. Furthermore, the Royal Commission found that Cable taught at a number of Marist Brothers schools in NSW and Queensland in the 1950s and 1960s: after teaching at Marist Brothers, Kogarah, Cable taught at Marist Brothers, Hamilton between 1971 and 1974, “taught at another school between 1975 and 1977”, before he left the Order in 1978. That finding is also consistent with the defendant’s evidence relied upon in this application: Lee affidavit 25 November 2022, par 21(c).

  4. In 2012 Cable was arrested for historic child sex offences. The evidence about the nature and extent of the offending, and the charges that were laid at this time varied. On one version, Cable was charged with 13 counts of indecent assault and battery brought on behalf of two complainants. On another version there were 60 alleged offences, involving 22 boys. It is unnecessary to make any precise finding about the nature and extent to which Cable was charged at and around this time. The plaintiff, it should be noted, was not a complainant in connection with those criminal proceedings.

  5. On 17 March 2015, following a trial, a jury found Cable guilty of the 13 counts presented on the indictment – being 9 counts of indecent assault, and 4 counts of buggery.

  6. On 14 April 2015, prior to Cable being sentenced, Carroll & O’Dea Lawyers (the defendant’s solicitors) wrote to Cable’s Legal Aid lawyer, on behalf of the defendant, seeking a meeting between Cable and “a member of the Marist Brothers leadership team” regarding another student (who need not be identified) that attended Marist Brothers, Hamilton when Cable taught there – a boy that had since taken his own life. The reason for the approach was to assist the mother of the boy: to determine whether the boy was a victim of Cable and thus offer a possible explanation for his suicide. The letter specifically sought a meeting with Cable to ascertain his “recollection” of that former student, “and whether … Cable ever assaulted him”.

  7. In response to this letter, Cable’s lawyer wrote to Carroll & O’Dea Lawyers on 16 April 2015 advising:

“I am instructed that our client will not meet with any member of the Marist Brothers leadership team. I therefore trust that neither your client nor your clients’ representatives will attempt to facilitate contact with Mr Cable”. (emphasis in original).

  1. Two matters should presently be noted about this letter. First, the contact that was made by the defendant’s solicitors was following Cable’s conviction, but prior to sentencing (he was sentenced on 18 June 2015: see [34], below). Secondly, the letter is directed to meeting “any member of the Marist Brothers Leadership Team”: it says nothing about meeting lawyers or investigators, and it says nothing about him refusing contact in connection with other matters indefinitely.

  2. Following the receipt of this letter, neither the defendant, nor its solicitor, had any contact with Cable, nor did either of them attempt to make contact with him (Lee affidavit 25 November 2022, par 32; Slattery affidavit 7 March 2023, par 22). The evidence from Mr Slattery (the solicitor for the defendant), which was confirmed during his cross-examination, was that based upon the receipt of this letter, and its content, he had formed the view that Cable would not assist further. (It will be necessary to return to this issue further and make some more precise findings upon it – I do so when considering the death of Cable: see [66]ff, below). It is sufficient to presently note that I do not accept that reasonable attempts were made to make contact with Cable, so as to put the plaintiff’s allegations to him and to secure his evidence.

  3. Following his conviction for the various offences on 17 March 2015, on 18 June 2015 Cable was sentenced by Whitford SC DCJ to sixteen years imprisonment with an eight-year non-parole period (Lee affidavit 25 November 2022 at [27]). The sentencing judge made the following relevant findings:

  1. At the time of sentencing, Cable was aged 83: sentencing judgment at [64]. (As earlier noted, Cable was born on 2 May 1932).

  2. The offences for which he was convicted occurred in 1962 (when Cable was teaching at Marist Brothers, Maitland) and in 1965 (when Cable was teaching at Marist Brothers, Pagewood): sentencing judgment at [3].

  3. After those verdicts were returned, Cable pleaded guilty to a further 12 counts of indecent assault on an indictment presented on 19 March 2015. Those assaults were committed in the period 1960-1974 on 12 former students: sentencing judgment at [4].

  4. The sentencing of Cable included those for which he was found guilty, but also to the 12 offences to which he pleaded guilty: sentencing judgment at [4].

  5. The sentencing judge also had regard to 11 other indecent assaults, contained in 5 separate Forms 1: these 11 additional matters relate to 9 complainants who were described as “former students” of Cable in the 1960s and 1970s: sentencing judgment at [5].

  6. Cable expressed “no remorse for his predatory conduct, nor insight into its consequences for his many victims”, and to the extent that Cable’s guilty pleas might be so interpreted, considered that the pleas “might rather reflect a recognition of the strength of the Crown case … rather than any particular remorse”: sentencing judgment at [70].

  1. Cable subsequently pleaded guilty to other offending – as follows:

  1. Cable pleaded guilty to a further 12 counts of indecent assault, involving 12 different complainants spanning the period 1969 to 1974 (Lee affidavit 25 November 2022, pars 27 and 28).

  2. On 19 March 2015 (that is, two days after the jury returned its guilty verdicts), Cable pleaded guilty to an unknown number of offences involving 17 boys.

  3. In or around 2018, Cable was charged with additional offences against 5 further victims. The offending conduct was alleged to have occurred in the Newcastle region between 1971 and 1974. In October 2018, Cable entered a plea of guilty. In March 2019 Cable was sentenced for this offending by Ellis SC DCJ “to an additional 6 years in jail”.

  1. On 23 October 2020, Koffels Lawyers (the plaintiff’s solicitors) notified the defendant, by letter sent to the defendant’s solicitors, of the plaintiff’s allegations against Cable, and his intention to bring a claim. In my view, the content of this letter is important – not simply because it advises of the plaintiff’s intent to bring a claim, but because it sets out, in some detail, the specifics of the alleged abuse. It is thus not a demand, devoid of detail, but (I find) a highly specific one containing more than sufficient information to enable the plaintiff’s claim to be effectively put to Cable. The letter is also important because it suggests that the defendant “take urgent steps to contact [Cable] …”, and that if the defendant failed to do so that the plaintiff would draw his request to the attention of the Court in connection with any application made by the defendant to permanently stay any proceedings subsequently commenced.

  2. On 28 October 2020, the defendant’s current solicitors were instructed to act on behalf of the defendant.

  3. On 24 November 2021 the plaintiff commenced proceedings in this Court by statement of claim.

  4. By 24 November 2021, in addition to the filed statement of claim and statement of particulars, the defendant had received the plaintiff’s expert medico-legal evidence, an unsigned statement of the plaintiff and “various medical evidence” (Lee affidavit 25 November 2022, par 10; plaintiff submissions at [38]). The unsigned statement contains the plaintiff’s version of the alleged abuse, a version that was substantially repeated in the evidentiary statement filed by the plaintiff in the proceedings. Thus, by that time, in addition to the detail contained within the letter of demand dated 23 October 2020, the defendant had the plaintiff’s account of the acts relied upon to support his claim for damages.

  1. On 17 February 2022, the defendant requested further and better particulars. The plaintiff responded to the request for further and better particulars on 18 February 2022 and 21 February 2022 (Lee affidavit 25 November 2022, par 12).

  2. On 12 September 2022 Cable died in custody (Lee affidavit 25 November 2022, par 31).

  3. The defendant did not approach Cable at any point prior to his death to put the plaintiff’s allegations to him, and they have not been put to Cable.

The power to grant a permanent stay: s 67 of the CPA and the relevant principles

  1. The defendant seeks a stay of proceedings pursuant to s 67 of the CPA. That section provides:

Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.

  1. The power under s 67 is broad. As was noted in State of New South Wales v Plaintiff A [2012] NSWCA 248 at [15]:

Section 67 does not identify any particular criteria as relevant to the exercise of the power but, at least in the Supreme Court, it may be understood to cover a variety of circumstances in which the Court's inherent jurisdiction to prevent abuse of its process may be invoked.

  1. Proceedings may be of that kind, and stayed on a permanent basis, where the continuation would be manifestly unfair to a party or “would otherwise bring the administration of justice into disrepute among right thinking people”: Walton v Gardiner (1993) 177 CLR 378, 393; [1993] HCA 77; Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 at [6] (‘Batistatos’); Moubarak at [71](8) and (9).

  2. As I have earlier noted, the defendant’s application for a stay is based upon its contention that the continuation of these proceedings would be manifestly unfair to it.

  3. The principles governing stay applications have been discussed at appellate level in cases such as Batistatos, Connellan v Murphy [2017] VSCA 116 (‘Connellan’), Moubarak, The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 (‘Anderson’), Gorman, The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 (‘GLJ’),[2] and Patsantzopoulos by his tutor Naumov v Burrows [2023] NSWCA 79.

    2. On 18 November 2022, the High Court granted special leave to appeal from this decision.

  4. As to those principles, at a general level, they relevantly include the following:

  1. The onus is “squarely” on the defendant to justify a stay: Moubarak at [71](1), and the onus is a “heavy one”: Williams v Spautz (1992) 174 CLR 509, 529; [1992] HCA 34.

  2. A stay is only granted in exceptional circumstances “because it effectively brings to an end litigation without adjudication”: Connellan at [54]; Moubarak at [71](2) and [196]; Anderson at [422].

  3. Stay applications are “intensely fact dependent”: Moubarak at [112] and [193]; Gorman at [84].

  4. Lengthy delay does not of itself justify a stay: Anderson at [428].

  5. A recognised basis to grant a permanent stay is where it will not be possible to obtain a fair trial: Moubarak at [88]. In the context of a contention that the defendant is unable to obtain a fair trial (the essential submission made by the Marist Brothers), it is important to note “that a fair trial is not synonymous with a perfect trial”: Moubarak at [89].

  1. The ultimate question is whether, drawing those principles together, the circumstances show that any trial would be “so unfair and burdensome so as to bring the administration of justice into disrepute” (Anderson at [429]; Connellan at [54]) or because of the “practical impossibility of giving the defendants any real opportunity to participate in the hearing, to contest [the facts] or, if it should be right to do so, to admit liability on an informed basis”: Moubarak at [85] and [191].

The grounds for a stay relied upon by the defendant

Introduction

  1. From the written submissions filed by the defendant in support of the order it seeks, ten matters were advanced that were argued to justify, individually or cumulatively, a finding that a fair trial of the proceedings was not possible, and warranted the making of an order staying of them.

  2. In substance, those matters can be grouped into four submissions as follows:

  1. First, unfairness arising out of the death of Cable – particularly in circumstances where it is said that Cable died without the plaintiff’s allegations ever being put to him by the defendant – with the consequence that the defendant has been unable to obtain a statement, evidence or instructions from him (defendant’s submissions at [75]-[81]). The defendant submitted during argument that this was the principal ground upon which the stay was sought.

  2. Secondly, general unfairness due to the effluxion of time: the alleged events took place over 52 years ago, other witnesses who may be relevant may now “be dead or unavailable” (defendant’s submissions at [82]).

  3. Thirdly, the absence of documentary evidence in connection with the claims: “it seems that there may be little or no documentary evidence in existence that may have any bearing on the likelihood of the alleged assault having occurred” (defendant’s submissions at [83]).

  4. Fourthly, the plaintiff had brought earlier proceedings against the State of New South Wales for historical sexual abuse – allegedly suffered whilst detained as a juvenile at Albion Street Detention Centre – and replies to particulars provided, at that time and in connection with that claim, denied any other history of sexual abuse. Against that background, it was submitted that there “are clear concerns with the accuracy of the allegations made by the plaintiff against Cable” (defendant’s submissions at [8]). In oral submissions at the hearing, the defendant confirmed that this was not relied upon as a separate ground to justify staying the proceedings; rather, the defendant argued that it was illustrative of the forensic disadvantage under which the defendant was placed because they would not be able to call, and adduce evidence from, Cable.

  1. The defendant’s overarching submission was (defendant’s submissions at [84]):

This is clearly a matter in which the defendant has no way of putting before the Court any evidence to test the plaintiff’s claims. This would mean that any trial would be no more than a “formal enactment of the process of hearing and determining the claim” and would be manifestly unfair and could be seen as bringing the administration of justice into disrepute.

  1. As ultimately advanced during submissions at the hearing, the defendant argued that the death of Cable was the principal ground relied upon to support a permanent stay, and that the second to fourth points (see [50], above) reinforced the first one.

The death of Cable

  1. As noted above, the defendant submits that where Cable has died without ever being confronted with the plaintiff’s allegations, it has lost the opportunity to put the allegations to Cable and, thus, the capacity to determine Cable’s putative response; to obtain instructions and/or an evidentiary statement from him; and to call him as a witness at the hearing. The plaintiff contested each of these propositions: his essential submission was that the defendant was not deprived of the opportunity to speak to Cable before his death and any impoverishment of the evidence caused by Cable’s death was a product of the deliberate decision-making by the defendant, in the 22 months following notification of the plaintiff’s claim, not to attempt to make contact with Cable.

  2. In resolving this contested issue, it is necessary to consider the legal principles which inform whether proceedings of the kind sought to be advanced here should be permanently stayed in – broadly – two situations: first, the situation where the alleged perpetrator dies (or is incapacitated) before the allegations of abuse are put to them (or a claim made against them); and, secondly, the situation where a defendant (or perpetrator) is put on notice prior to the perpetrator’s death of allegations of abuse (or a claim made against them) but the defendant does not – to put it neutrally – make contact with the perpetrator in order to address what is alleged.

  3. Before identifying those general principles, it is important to emphasise that whether their application should lead a court to grant a permanent stay of proceedings is a question that must necessarily be determined – and will turn – on the basis of its own facts: it is “not a particularly profitable exercise simply to compare individual features of different cases”: Gorman at [84]; GLJ at [117]-[118]. Thus, to the extent that the Marist Brothers drew attention to the facts of a number of decisions where a court granted a permanent stay in cases involving historical sexual abuse – as a means to inform the outcome in the present case – those decisions are only of assistance in terms of identification of principle. In this respect, although raised in a different context, the following remarks are apposite, in my view: “… decided cases in this area are fact-sensitive, and it is a sterile exercise, involving a misuse of precedent, to seek the solution to one case in decisions on the facts in other cases”: Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [2].

  4. I will turn now to the relevant principles in the two situations identified – principles which guide whether or not a permanent stay should be granted.

  5. In relation to the first situation, that an alleged perpetrator is now deceased is not necessarily, in and of itself, sufficient to justify a permanent stay. Nevertheless, it has been recognised that in certain circumstances – for example, where the allegations of abuse were never put to the alleged perpetrator before they died or lost capacity, and they gave no statement or interview in relation to the allegations – a permanent stay of proceedings may, and possibly quite often will, be appropriate: Moubarak at [153], [164]-[165] and [167]-[169]. In this situation, a key consideration is the effect of the death (or incapacity) on the fairness of the proceedings.

  6. In relation to the second situation – that is, circumstances where the defendant was put on notice of the claim or the allegations prior to the death (or incapacity) of the alleged perpetrator – different considerations apply: a defendant is required to take reasonable steps to investigate what is alleged. Thus, as Bathurst CJ noted in Anderson at [494]:

It seems to me that if, in the face of reasonably anticipated litigation, timely steps were not taken to gather evidence, whether documentary or oral, and as a result, a party lost the ability to meaningfully deal with the claim against it, then it would be contrary to the administration of justice to grant a stay. Indeed to deprive a litigant of his or her right to bring a claim in those circumstances would itself bring the administration of justice into disrepute.

  1. It is not necessary, however, for parties to pursue remote lines of inquiry which may “as a matter of mere possibility, produce some information which may be of assistance in dealing with the issue”, as it would impose an unreasonable burden on the defendant and be of itself “oppressive and unfairly burdensome”: Anderson at [489]. However, it is necessary for the defendant to demonstrate that “all reasonable enquiries which bear upon the fairness or unfairness of the proceedings have been undertaken”: GLJ at [115]; Gorman at [94].

  2. Here, the defendant was ‘on notice’ from the letter dated 23 October 2020 of the plaintiff’s allegations against Cable (and the detail of them, as I have earlier found), and aware of the specific way in which the claim was put since at least 24 November 2021 (being when the plaintiff filed his statement of claim in this Court). However, the defendant did not take steps to put the plaintiff’s allegations to Cable, nor obtain instructions or an evidentiary statement from him up until that ‘opportunity’ was lost by reason of Cable’s death on 12 September 2022.

  3. The defendant submitted that, having been “rebuffed” in 2015, the Marist Brothers formed the view that, thereafter, Cable would be unwilling to receive any contact in connection with the current claim. The submission is based upon evidence, the form of which is problematic, and which I do not accept. The evidence, given by the defendant’s solicitor, was (Slattery affidavit 7 March 2023, par 24):

I am instructed by my client that its position is that they understood that they were not able to contact Cable following the 16 April 2015 letter and that any further attempts to do so would be rebuffed or ignored by him.

  1. The defendant’s solicitor’s evidence was that, following receipt of the letter, and leaving telephone messages for Cable’s Legal Aid lawyer, he “was not subsequently instructed to attempt to speak to [Cable]”. Although I accept that the defendant’s solicitor was not further instructed to attempt to speak to Cable, I do not accept the evidence about the “client’s understanding”, referred to in [62], above: the “client” is not identified, nor is the basis for their understanding or when that understanding was formed.

  2. In any event, putting to one side my rejection of the “client’s evidence”, I am unable to accept the defendant’s submission (viz., that Cable was forevermore unwilling to receive contact in connection with any allegations or claims made against him), for the following reasons:

  1. First, the context, and timing, of the approach is not unimportant: the approach was by letter dated 14 April 2015 to Cable’s Legal Aid lawyer in connection with an unrelated matter in 2015 (see [30]-[31], above), and it was after his conviction for historic child sex offences on 17 March 2015 (see [29], above), but before Cable was to be sentenced. In those circumstances, and at that time, it is quite possible that Cable did not wish to speak with a member of the Marist Brother’s “Leadership Team”. Although the solicitor for the defendant did not accept, when cross-examined, that, pending sentencing, it would have been a “sensitive period” for Cable, in my view, that is a fair inference to draw (and I do). At a minimum, in my view, it should have been recognised that it might have been – thus necessitating further, but later, contact once the plaintiff’s claim was notified in October 2020.

  2. Secondly, although Cable refused to speak to a member of the Marist Brothers’ “Leadership Team”, the letter said nothing about meeting with, say, a lawyer or an investigator – a matter that is apparent from the letter itself, in my view. In any event this was accepted by the solicitor for the defendant when he gave evidence (T17.30). Furthermore, the letter to, or from, Cable’s solicitor said nothing about other matters that might concern Cable. The 16 April 2015 letter was not expressed in terms of Cable refusing, in all cases and in all situations forevermore, to speak to anyone in connection with any and all allegations made against Cable. In those circumstances, I cannot accept that the terms of the 2015 Legal Aid letter was such that it discharged the defendant from making any further attempt to contact Cable, and put the allegations made by the plaintiff to him and to attempt to secure his evidence.

  3. Thirdly, it is important to recognise, in my view, that following the initial convictions (and although expressing no remorse when sentenced by Whitford SC DCJ), Cable thereafter pleaded guilty to all other charges brought against him in connection with him sexually abusing young boys. That he did so is, I find, highly suggestive that Cable, if contacted, may well have agreed to discuss what was alleged by the plaintiff. So too is another matter. Although the evidence in connection with his sentencing post 2015 did not include the formal orders, based upon the sentence imposed by Whitford SC DCJ, and by Ellis SC DCJ, it appears that Cable was ineligible for parole up until at least some time in 2029. By that date Cable would have been approximately 97 years of age. In those circumstances, therefore, Cable undoubtedly knew that he would likely remain in custody for the balance of his life. In my view, this is some evidence that, particularly with the pleas of guilty entered, suggests that Cable, if contacted, may well have agreed to discuss what was alleged by the plaintiff.

  4. Fourthly, I am unable to accept that the single letter from Cable’s Legal Aid lawyer in April 2015, in the terms that it was received amounts to taking reasonable steps to put the plaintiff’s allegations made by the plaintiff, some five and a half years later, to Cable. The position is not otherwise because the solicitor for the defendant rang, in the “2 week period” following receipt of the letter, and left two or three messages for Cable’s Legal Aid lawyer to contact him (which did not occur). At an absolute minimum, I consider that the defendant should have attempted – on an ongoing basis – contact with Cable following the letter notifying the defendant of the plaintiff’s intent to commence proceedings in 2020, and those steps should have been intensified once proceedings had been commenced. As it happens, nothing was done by the defendant to ascertain whether Cable would speak to them, their lawyers or investigators about the plaintiff’s claim.

  5. Fifthly, the defendant was well aware of Cable’s age – he was 83 years of age at the time of sentencing, approximately 88 years of age at the time that the defendant was notified of the intent of the plaintiff to bring a claim in October 2020, and approximately 89 years at the time the plaintiff commenced proceedings in this Court. Given Cable’s age, if it were discovered (or even believed) that Cable would not assist in meeting the defendant, their lawyers or investigators, to deal with what was alleged by the plaintiff then immediate steps should have been taken to ensure that Cable’s evidence was given – either by having the matter listed for an urgent hearing (which undoubtedly would have been ordered, and heard) or, possibly, for the taking of evidence on commission pursuant to rr 24.3 and 31.6 of the Uniform Civil Procedure Rules 2005 (NSW). I do not accept that the defendant can simply stand back and do nothing, which is what has occurred here.

  1. It is “clear that a party seeking the exceptional relief of a permanent stay must demonstrate that all reasonable enquiries which bear upon the fairness or unfairness of the proceedings have been undertaken”: Gorman at [94]. That is not this case. The defendant should not, in my view, have the benefit of its own inaction: the defendant’s alleged inability to meaningfully deal with the claim is, I find, a product of its own unreasonable failure to attempt to make contact with Cable, and to take steps to secure his evidence. In my view, to accept otherwise would, adopting what was said by Bathurst CJ in Anderson at [494], “itself bring the administration of justice into disrepute”.

The effluxion of time

  1. The plaintiff’s claim dates back well over 50 years. I am conscious of, and have given careful consideration to, that fact – in addition to the arguments that the defendant has specifically advanced in connection with what is argued to be demonstrated prejudice due to the effluxion of time (see [70]ff, below).

  2. Where (as here) the alleged abuse occurred long ago, that is a significant matter to be considered in determining whether to grant a permanent stay: Moubarak at [170]. Although, as noted earlier, lengthy delay does not of itself justify a stay, it remains relevant by reason of presumed prejudice: Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 at [105]; Moubarak at [72]-[87].

  3. In my view, although highly relevant, I am unpersuaded that the effluxion of time of itself justifies the relief that the defendant seeks, nor do considerations of presumed prejudice. When regard is had to my earlier findings, in connection with the failure of the defendant to pursue – reasonably – means to secure Cable’s version as to what was alleged or his evidence as to those matters, I am firmly of the view that the effluxion of time, and any presumed prejudice, does not justify the relief that the defendant seeks.

  1. To the extent that the defendant’s submissions about delay – its consequences and its effect on the evidence and the fairness of the trial – identified specific matters, they are addressed in what follows.

The unavailability of witnesses and absence of records

  1. The argument for the defendant was, separate from the death of Cable, that a range of other “Brothers” who worked at the school were either deceased or otherwise had not been located.

  2. In connection with the case for direct liability against the school there are, as was accepted during argument, two broad issues. The first was whether the school had notice – actual or constructive – of “inappropriate” conduct of Cable. The second was whether, when dealing with any system case, it had sufficient evidence – documentary or otherwise – to respond to the case.

  3. The defendant’s submission was that, irrespective of whether the case was one for direct, or one for vicarious, liability, the result was the same: each has as their starting point the particular acts of abuse perpetrated by Cable upon the plaintiff. In the circumstances, Cable having died and the defendant being unable to speak to him prior to his demise, the defendant is placed in a position of acute disadvantage. I have not, for reasons earlier given, accepted that submission. Furthermore, I do not consider that the other matters raised by the defendant are sufficient to justify the order that the defendant seeks. I will explain why.

  4. The defendant argued that a number of specific issues in the matter that arise for consideration are unable to be dealt with by reason of lack of records and/or witnesses. Specifically, as identified during submissions, those issues are: (a) whether the events in question occurred, or not; (b) whether Cable taught in the secondary school or in the primary school; and (c) whether the defendant was on notice of, or had knowledge of, Cable’s aberrant conduct prior to the time that Cable is alleged to have committed his offences against the plaintiff.

  5. I will deal with these submissions in order.

Issue: the “events”

  1. In relation to whether the events in question occurred, it is true that – now – by reason of the death of Cable, the defendant will not have the opportunity to gain a version from Cable. But that is a consequence, I have earlier found, of the defendant’s failure to take steps to make contact with Cable, following the notification of the plaintiff’s claim in 2020: see [54]ff above.

  2. To the extent that the submission extends beyond Cable – and to the suggested lack of witnesses or documents in connection with the offence – I do not accept the submission. In my respectful view, it is unrealistic to think that there would be “witnesses”: the plaintiff’s version of the offending conduct, contained in his evidentiary statement dated 23 February 2023 (Exhibit 5), suggest the acts were surreptitiously performed. For example, in relation to the offending that occurred whilst the plaintiff was on detention, the acts are alleged to have occurred when the plaintiff was made to sit towards the back of the classroom, I infer out of sight of any other students who may have been present in that room at that time (the plaintiff described that “there weren’t many boys on detention and the room was largely empty”: par 19). And in connection with the offending that occurred during class, this occurred “around the back of [Cable’s] desk as he sat in his chair” (par 17). That this is so, in my view, underscored the importance of the pursuing reasonable steps to secure a version of events from Cable in a timely way following notification of the claim in October 2020.

  3. Furthermore, to be clear, the plaintiff’s evidentiary statement makes no reference to the plaintiff making a complaint in connection with Cable’s conduct at any relevant time, nor does it form part of the pleaded claim that the plaintiff intends to bring. For example, the plaintiff does not say in his evidentiary statement, nor allege in the SOC, that he made a complaint following one or other of the alleged instances of abuse to the Marist Brothers, which was not acted upon and following which further instances of abuse occurred.

  4. In the circumstances described in [76]-[77], above, there is no basis to find there were documents created in connection with the “offending conduct”, but those documents are now lost. Separately, there is a further matter that, in my view, undercuts the submission that the defendant has advanced: the evidence established that, in connection with complaints of inappropriate conduct by Cable (and other Marist Brothers), they were simply not recorded by Marist Brothers. That was the situation in connection with a specific complaint made by a former student (MB) that he had been molested by Cable in 1967 when he was a student at Marist Brothers, Pagewood (where Cable taught): see the Royal Commission report, p 31. Another instance, contained in the Royal Commission report, p 140, was in connection with allegations of abuse made against Cable whilst he taught at Marist Brothers, Maitland.

  5. In relation to the incident involving MB, it is relevant to note the following contained in the Royal Commission report, p 31:

As the Church parties acknowledged, nothing was done to protect children at Marist Brothers schools from abuse by Cable, and no appropriate action was taken in response to any complaints made to the Marist Bros in the 1960s. The Church parties and Brother Carroll also acknowledged that complaints of this nature ought to have been recorded, should have led to appropriate action being taken within the school and should have been reported to the Provincial. We agree.

  1. The Royal Commission made a similar finding in connection with the incident that occurred involving Cable whilst he taught at Marist Brothers, Maitland between 1961 and 1963: report p 140.

  2. The defendant submitted that the findings of the Royal Commission were “unlikely to be admissible at trial”. That may well be so, but the issue is not, respectfully, a trial issue: it is whether, as part of the defendant’s submission about documents relating to Cable’s alleged abuse of the plaintiff (and his established abuse of other students) was “documented” – but those documents are now lost. I am not satisfied that there were any documents of the kind suggested by the defendant ever in existence. The Marist Brothers simply did not prove, in the current application, that this was so other than in a limited way (essentially in connection with records relating to whether Cable taught in the primary or secondary school – see [82]ff below).

Issue: whether Cable taught in the primary school

  1. The defendant next argued that, even putting to one side the events said to have been perpetrated by Cable, one of the key factual issues in the case was whether or not Cable taught in the primary school, or only in the secondary school. The plaintiff’s case, it is to be remembered, is that the abuse occurred whilst he was in year 5 and year 6 (see [20]-[23], above). The defendant’s position, on the present application, is that Cable only taught in the secondary school.

  2. I do not consider that this matter, on its own or in connection with other matters raised by the Marist Brothers, justifies a permanent stay. That is because there is, in my view, sufficient evidence available to the Marist Brothers to contest this issue. I refer, in this respect, to the following:

  1. First, the Marist Brothers has available to it the attendance records of the plaintiff during 1969 and 1970. Although the records that were in evidence had the names of the other students in the plaintiff’s classes redacted, the Marist Brothers can take steps to locate and speak with those former pupils in order to determine whether or not Cable taught in the primary school, or not, and specifically whether he taught the classes as the plaintiff alleges. Notwithstanding it has this list, the Marist Brothers had not taken any steps to make contact with any of those students in order to determine their recollection. Given the likely numbers of students involved, it is not unreasonable to infer (and I do) that some would be available, and to specifically assist in connection with this issue.

  2. Secondly, the Marist Brothers accepts there is “limited documentary evidence” suggesting that Cable did not teach in the primary school: defendant’s written submissions dated 7 March 2023, par 12. That submission was presumably a reference to those records described as the “1970 teaching program”, which showed that, during 1970, Cable only taught in the secondary school, and not the primary school: Lee affidavit 25 November 2022 at [23], and, although described as annexure ‘T’ in the affidavit, appears as annexure ‘V’. It is not a case, therefore, where there is a complete absence of documentary evidence.

  3. Thirdly, although the records available appear not to cover the year 1969 (specifically, the “1969 teaching program”), the Marist Brothers have made contact with a number of former or current “Brothers” who taught at the school – for example, Christopher Robinson (Brother Christopher), Joseph Fulton (Brother Redmond) and John Fitzgerald (Brother Loyola), Brother Bill Tarrant and Richard McGuinness (Brother Richard): Lee affidavit 25 November 2022, pars 40 and 41; Lee affidavit 7 March 2023, pars 9, 11 and 14. Each of them has given a version of events that would enable, if so advised, the Marist Brothers to fully contest the issue about where Cable taught in 1969 and 1970. That is because:

  1. In relation to Christopher Robinson (Lee affidavit 7 March 2023): he told a solicitor employed by the defendant who interviewed him (in 2022):

He confirmed he taught in the Secondary School only in 1969 (affidavit par 9(b)).

He recalled that … (Cable) was on the secondary school teaching staff in 1969, however, as he taught English he did not have much to do with Cable who he recalled taught science or technical drawing (affidavit par 9(c)).

He recalls that the primary school (Grades 5 and 6) was treated as a separate entity to the secondary school and thought it unlikely that Cable would have had any interaction with primary school students (affidavit par 9(d)).

  1. In relation to Joseph Fulton (Lee affidavit 7 March 2023): he was interviewed by an investigator appointed by the Marist Brothers, and a draft statement has been secured from him (affidavit, pars 10-12), the key matters of which were said by a solicitor for the Marist Brothers to be as follows:

He was at the School between 1969 to 1971 teaching in the secondary school (affidavit par 11(b)).

He recalls that primary school classes were allocated a dedicated teacher for each class teaching the whole range of subjects (affidavit par 11(d)).

He could not recall any situation when a teacher from the secondary school was asked to take a primary school class (affidavit par 11(e)).

He remembers Cable from when he taught at the school and thought Cable taught technical drawing or a subject of that nature (affidavit par 11(h)).

He was never aware of Cable taking any primary classes (affidavit par 11(i)).

  1. In relation to John Fitzgerald (Lee affidavit 7 March 2023): he was interviewed by an investigator appointed by the Marist Brothers, and a draft statement has been secured from him (affidavit, pars 10-12), the key matters of which were said by a solicitor for the Marist Brothers to be as follows:

He was at the school between 1969 to 1976, teaching one of four Grade 5 primary school classes (affidavit par 14(b)).

He recalled that each primary class was allocated its own teacher (affidavit par 14(c)).

He could not recall any occasions when a secondary school teacher was called in to supervise a primary school class (affidavit par 14(d)).

He remembers Cable from the school and that he taught in the secondary school but could not recall which subjects Cable taught (affidavit par 14(g)).

  1. In relation to Br Bill Tarrant (Lee affidavit 25 November 2022): he told a solicitor employed by the defendant who interviewed him (in 2022):

He was at the school teaching grade fries in the primary school in term 3 from September 1970 2 December 1970 (affidavit par 42(b)).

He recalls that both grade 5 and 6 classes were taught by a single regular classroom teacher (affidavit par 42(f)).

He remembers Brother Romuald Cable but cannot remember cable ever teaching in the primary school. He thought it was unlikely that cable would ever have taught English and was more likely to have taught science or technical subjects… (affidavit par 42(h)).

He had previously spoken with Brother Thomas Hughes. Brother Thomas Hughes had no recollection of Cable ever teaching in the primary school. Brother Thomas Hughes’ recollection was that Cable only taught secondary students (affidavit par 42(j)).

  1. In relation to Richard McGuinness (Lee affidavit 25 November 2022): he told a solicitor employed by the defendant who interviewed him (in 2022):

He recalls teaching grade 6 in the primary school in 1970 (affidavit par 43(b)).

He never saw or heard of Cable teaching in the primary school (affidavit par 43(d)).

He recalled Cable usually teach technical drawing, science and was very involved with cadets which was restricted to secondary school students only (affidavit par 43(e)).

He recalled that primary school was quite separate from the secondary school and that the students and teachers would not intermingle (affidavit par 43(f)).

…He thought it unlikely that Cable would have supervised primary school detention (affidavit par 43(h)).

He recalls that grade 5 and grade 6 classes were all taught by the one teacher who taught all subjects including religious education (affidavit par 43(i)).

  1. In my view, there is ample evidence available (being the 1970 teaching program and the witnesses referred to above), that could be adduced at trial in order for Marist Brothers to contest the issue (viz., whether Cable taught in the primary school, as the plaintiff alleges), notwithstanding the effluxion of time and the death of Cable. It bears repeating that “a fair trial is not synonymous with a perfect trial”: Moubarak at [89]; Anderson at [429]. In my view a fair trial can still be conducted, despite the fact that, undoubtedly, some potential witnesses are not available to be called and because Cable’s 1969 teaching program cannot be located.

Issue: actual or constructive knowledge of Cable’s aberrant behaviour and breach of duty

  1. I have, in [24] and [71], above, set out the case that the plaintiff identified, during submissions, that he seeks to advance. In connection with the claim in negligence (viz., direct liability), and the element of “notice” (in the sense described in s 5B(1)(a) of the Civil Liability Act 2002 (NSW)), the defendant’s argument was that it was disadvantaged and in particular it did not have records which might tend to cast some light upon whether it had notice – actually or constructively – of Cable’s conduct in abusing students prior to the time of the alleged abuse in the present case, and to assist in the case on breach more generally (see [24], above). In connection with this submission a number of matters should be noted, as follows:

  1. First, the defendant has the 2013 file in connection with Cable – the content of which it did not seek to prove – a file that was created by the solicitors for the defendant who “had a habit of opening general files in relation to certain accused” because as at that time the solicitors “had been made aware” of allegations against him (T16.4). The plaintiff did not, however, seek to rely upon the defendant’s failure to prove the contents of this file, so I will put it to one side.

  2. Secondly, I think it is not unimportant to recognise that the submissions, in connection with “notice”, tend to invert the onus of proof: it is, and remains, the plaintiff’s onus to prove this element of his cause of action, and until sufficient evidence is adduced by the plaintiff directed to doing so, the defendant is not required to “disprove” anything.

  3. Thirdly, the defendant has specifically pleaded in its defence that it has “received complaints from other former students of schools operated or formally operated by the Marist Brothers to the effect that they were sexually abused by Cable prior to 1969” (defence, par 10(a)) and that “each and every one of the complaints referred to above were received by the defendant after 1971” (defence, par 10(b)). This material was not put into evidence on the current application. In my view, these matters are significant because it identifies the availability of documents back to 1971, but also because it confirms there are no documents before then. Thus, on the documents that are in existence, the Marist Brother can contest the issue about its “notice” – or lack thereof – of Cable’s behaviour. To the extent that the submission went beyond this, extending to a submission that documents are not available that otherwise, possibly might have been, I do not accept it. The finding that I have earlier made – essentially that the Marist Brothers had failed to prove that, in fact, there were at one point documents available recording Cable’s abuse, but they are now no longer available (see [81], above) – applies with equal force here.

  4. Fourthly, and further to the third matter raised above, it is important to note that the “records” referred to are not the only evidence directed to the broad issue of “notice”. For example, there is evidence in connection with the incident involving MB, and the allegation that Cable molested him in 1967 which resulted in a report being made to the principal of Marist Brothers, Pagewood. The plaintiff would be able to call evidence from MB about his interactions with Brother Willits (the then principal of Marist Brothers, Pagewood), and both MB and his father gave statements to the police in 2013 and 2014: Royal Commission report, pp 141-142. Equally, it would be open to Marist Brothers – if they have not already done so – to make contact with MB, and his father, to discuss what they allege occurred, and what they reported to police. The Marist Brothers have, it should be pointed out, made specific reference to what was alleged by MB and his father in the defence filed (defence, par 10(d)).

  5. Fifthly, and dealing with the claim in negligence for direct liability against the Marist Brothers, the defendant has specifically joined issue with this part of the plaintiff’s claim, in a manner that indicates that it has a proper basis to prove at trial that which it has contested. For example:

  1. Defence, par 20(c): the defendant does not “admit that the risk of harm was foreseeable to a prudent operator of a school in NSW in 1969 and 1970 to the extent that it required the Marist Brothers to take any additional precautions that it did not otherwise take” (underlining added).

  2. Defence, par 25(a): the defendant says “that it did undertake precautions which a prudent operator of a school at the relevant time would have undertaken” (underlining added).

  1. Having regard to the accepted way in which the plaintiff intends to essentially prove the case for direct liability, and given the above matters, I am unpersuaded that the Marist Brothers could not have a fair trial in connection with the plaintiff’s direct liability case. It follows that I am unpersuaded that it is a basis, on its own, or when considered with the other matters that I have previously addressed, to justify the order that the Marist Brothers seek. In connection with any claim for vicarious liability, no separate submissions were advanced beyond the death of Cable (and its impact on the defendant’s ability to defend a case for vicarious liability) – a matter that I have previously addressed.

The 2018 proceedings brought by the plaintiff

  1. The defendant next submitted that “there are clear concerns with the accuracy of the allegations made by the plaintiff against Cable” (at [8]) on the basis that when he had previously brought a claim for damages against the State of New South Wales for childhood sexual abuse suffered while in juvenile detention, the plaintiff had specifically identified that he had “no other history of sexual abuse” when he provided a response to a request for particulars in those proceedings (defendant submissions at [9]-[10]). Some brief reference to this claim is necessary to fully understand the submission put.

  1. In 2018, the plaintiff brought proceedings against the State of New South Wales alleging that he was sexually abused whilst he was incarcerated at the Metropolitan Boys Shelter located in Albion Street, Surry Hills, NSW – when he was aged approximately 14 to 15. The detail of the abuse that he suffered whilst there is contained in a statement of the plaintiff dated 15 March 2018, pars 15-19 and 22-27, and his evidentiary statement dated 23 February 2023, pars 26ff.

  2. In the material that is available in relation to that claim, no mention is made by the plaintiff about the allegations that form part of the current claim and, further, the plaintiff has specifically denied abuse other than when he was on remand at the Metropolitan Boys Shelter. The material includes the following:

  1. The solicitor for the defendant has attached a psychiatric assessment form prepared by a psychiatrist Dr Selvaratnam from 2016. The form was described as: “For Residential Treatment in Odyssey House”. On page 8 of that report under the heading: “Childhood”, the following is recorded: “Had a happy childhood. Went to Catholic schools”. On that same page, under the heading: “History of Abuse”, the following is recorded: “Nil”.

  2. As part of that claim, the solicitors representing the State requested further and better particulars on 24 August 2018. Paragraphs 2.8 and 2.9 specifically requested information about other “incidents of physical, sexual or psychological abuse …”. In a letter dated 1 February 2019, the solicitors representing the plaintiff provided the following response:

2.8 The Plaintiff was involved in a fight in which his right index finger was cut off, and he has been knocked unconscious three times for a few minutes. There is no other history of sexual abuse.

  1. As part of that claim, the plaintiff relied upon a report from a consultant psychologist, Professor Ian Coyle, dated 4 July 2018. Professor Coyle obtained a detailed history from the plaintiff which made no reference to the abuse that the plaintiff allegedly suffered whilst he was a student at the school.

  2. The plaintiff was also seen by a consultant psychiatrist retained by the State, Dr Patricia Jungfer. The plaintiff was assessed by Dr Jungfer on 24 June 2019 and Dr Jungfer prepared a report following that assessment. In that report, Dr Jungfer obtained a detailed history from the plaintiff of his presenting complaints as well as background information – but there is no reference, nor record of complaint, about the events that occurred at the school.

  1. Ultimately, during submissions, it was argued by the defendant that this issue reinforces the importance of Cable’s evidence at any trial. To the extent that it remained as a separate, and freestanding, submission, I do not accept that the suggested fragility of the plaintiff’s case, or there being an inconsistency, is a matter that on its own, or with other matters, justifies a permanent stay. That is for the following reasons.

  2. First, I have carefully considered this evidence, but I do not consider that it is appropriate to deal with the point akin to a defendant seeking summary relief: the plaintiff may well have an explanation for these matters (and in this respect I note that he has advanced an explanation in his evidentiary statement dated 23 February 2023, pars 26-31), and it is appropriately a matter that should be reserved for trial. Secondly, in connection with the use of medical histories, particularly on an application of this kind (and without hearing from the plaintiff, and having a full response), I am mindful of, and have had regard to, what was said in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2] – essentially giving caution to the manner in which medical histories should be used as a means to demonstrate inconsistency – as a further reason not to accede to the defendant’s submission. Thirdly, in relation to any inconsistency (viz., that the plaintiff denied, in 2018, any other form of abuse), the material that is the cornerstone of that aspect of the defendant’s case is set out in [89], above, is available for use at trial by the defendant.

Orders

  1. For the above reasons, I make the following orders:

  1. Order the defendant’s notice of motion, filed 25 November 2022, be dismissed.

  2. Order the defendant to pay the plaintiff’s costs of, and incidental to, the defendant’s notice of motion filed 25 November 2022.

  3. Direct the parties, on or before 12 May 2023, 5 pm, take steps to have the matter listed for directions and case management in the Institutional Abuse List.

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Endnotes

Decision last updated: 05 May 2023

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