RJP v Marist Fathers Australian Province and Trustees of the Marist Fathers for the Province of Australia
[2023] NSWSC 636
•18 May 2023
Supreme Court
New South Wales
Medium Neutral Citation: RJP v Marist Fathers Australian Province and Trustees of the Marist Fathers for the Province of Australia [2023] NSWSC 636 Hearing dates: 18 May 2023 Date of orders: 18 May 2023 Decision date: 18 May 2023 Jurisdiction: Common Law Before: Garling J Decision: See [16]
Catchwords: CIVIL PROCEDURE — hearings — adjournment — where plaintiff applied for adjournment of final hearing of proceedings — where basis for adjournment was plaintiff’s significant, recent personal turmoil unrelated to the proceedings — where fourth defendant does not consent to application for adjournment — where proceedings have resolved with respect to the other defendants — eight-week adjournment granted
Legislation Cited: Not Applicable
Cases Cited: Not Applicable
Texts Cited: Not Applicable
Category: Procedural rulings Parties: RJP (P)
Richard Burgess (D4)Representation: Counsel:
Solicitors:
D Villa SC (P)
Self-represented (D4)
AMC Lawyers (P)
File Number(s): 2019/395130 Publication restriction: Not Applicable
EX TEMPORE JUDGMENT
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This is an application for an adjournment by the plaintiff, RJP, of the hearing of proceedings for damages for sexual abuse which is presently fixed to start on 29 May 2023.
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The application for an adjournment of that hearing is based upon a complex and mix of matters which are intensely personal to the plaintiff, RJP, and which do not merit public exposition in my reasons. They are adequately described in an affidavit of 17 May 2023 which the plaintiff has affirmed. The active parties have a copy of the affidavit.
Basis for Adjournment Application
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The particular personal issues have arisen primarily within the last month. These may be viewed against a background of some earlier issues giving rise to the plaintiff enduring a heightened emotional state. The particular issues will come to a head this Saturday when a period of treatment will be commenced.
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The plaintiff says, and I accept, that the outcome of the treatment is uncertain, and that the events of the last month (in the context of earlier events) have led to him becoming so emotionally distressed and in such personal turmoil that he does not feel able to give evidence in these proceedings. That feeling is supported by a letter of 11 May 2023 from his general practitioner, which indicates the effects of the emotional stress and notes that the extent of the stress is such that the plaintiff, who was due recently to start a new employment position, has not felt yet able to take up that position. The plaintiff has attempted to arrange some psychological counselling, but that as yet has not come to fruition.
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The plaintiff’s direct participation in the proceedings would be limited to giving evidence by way of affirming his written statements as his evidence-in-chief and then being cross-examined by Mr Burgess, the fourth defendant. As best one can estimate, that cross-examination is likely to last for an hour or so. Such cross-examination could conveniently take place by audio-visual link from the offices of the plaintiff's solicitor in a regional location. In addition, the plaintiff would wish to participate indirectly in the hearing and would in any case be required to participate indirectly by preparing for it, including setting aside time for conferences with counsel and being able, either online or by telephone, to provide instructions to his counsel in real time.
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The principal dispute in the substantive proceedings between the parties is one of fact, namely, whether what the plaintiff alleges happened to him at the hands of the fourth defendant did in fact happen to him. That is because, whilst the plaintiff asserts that he was sexually abused by the fourth defendant, the fourth defendant denies that that is so.
Contentions of Fourth Defendant
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The fourth defendant, who is appearing for himself, does not consent to the adjournment. He draws my attention, appropriately, to the fact that the plaintiff’s allegations were first raised with him in July 2016, when he was arrested by officers of the New South Wales Police Force. He notes that since that time, both in respect of criminal proceedings and these civil proceedings, he has attended, over a long period of many years, at all of the necessary hearings.
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He too has found this litigation emotionally stressful. He notes that, notwithstanding the adverse life events through which he has been, he has never once requested an adjournment, and he also notes that at his age he is trying to stabilise his and his family’s life and to recover from what he regards as being wholly unjustified and erroneous allegations. He wishes to have an opportunity to give evidence on oath to deny that the conduct alleged by the plaintiff is true. He says that any delay in the opportunity to vindicate his reputation and to put these proceedings behind him is a delay which significantly and adversely affects him.
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I finish this narrative by noting that the plaintiff originally included a number of institutions as defendants in the claim brought by him, and that he has resolved the claims he had against those institutions.
Discernment
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I fully appreciate the difficulty of the position that the plaintiff is in and the difficulty of the position that the fourth defendant is in. Each is entitled separately to careful and earnest consideration, and the rights of each of these two litigants are important.
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Of course, in considering an adjournment I must consider the interests of justice and of how an adjournment and the continuation of the period of time during which the litigation subsists would affect not just these litigants but other litigants in the Court. I must, by weighing up what it is that is really achievable by an adjournment or by forcing the plaintiff's case on, determine whether any adjournment will serve the interests of justice.
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The decision which I have decided to make is one which suits neither party. That is because the Court cannot accommodate fully the position contended for by both parties. I am satisfied that the emotional stress from which the plaintiff is presently suffering is to be viewed through the prism of the significant emotional events which have taken place in his life. Ultimately those events are likely to be with him for a long time. The more recent events of February will be with him for the rest of his life. He is in an acute stage of emotional disturbance and distress.
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I accept that it would be very difficult for him to provide rational instructions, to give evidence which he could be confident would be accurate and rational and to give a good account of what he says are the events which happened to him. In those circumstances I think it becomes essential that he not be forced to give evidence when this matter is listed on 29 May and over the following days.
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On the other hand, I cannot see that the interests of the defendant and the interests of justice would allow this matter to be stood over until next year which is broadly the effect of the plaintiff’s application. That length of time or anything approaching it would be intolerable from the fourth defendant's point of view. He is entitled to see an end to this litigation.
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I have come to the conclusion that a relatively short adjournment of eight weeks would be sufficient to enable the plaintiff to ride out the current acute phase of his emotional situation. Whilst it is undesirable from the fourth defendant's point of view that there should be any adjournment, an adjournment of eight weeks, whilst difficult and undesirable, will, I think, be able to be managed by the fourth defendant, although not without difficulty.
Orders
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Accordingly, I make the following orders:
Vacate the hearing of the proceedings presently fixed on 29 May 2023.
Fix the hearing of those proceedings on 24 July 2023 with a maximum estimate of five days.
Reserve all questions of costs.
Stand the proceedings over for directions before Garling J at 9.30am on 23 June 2023.
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Decision last updated: 15 June 2023
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