S1 v The Trustees of Marist Brothers

Case •

[2016] NSWSC 970

•

14 July 2016

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: S1 v The Trustees of Marist Brothers [2016] NSWSC 970
Hearing dates:5 July 2016
Date of orders: 14 July 2014
Decision date: 14 July 2016
Jurisdiction:Common Law
Before: Harrison AsJ
Decision:

The Court orders that:

 

(1) The statement of claim is struck out.

 

(2) The plaintiff is to file and serve an amended statement of claim that complies with paragraph [51] within 28 days.

 (3) Costs are reserved.
Catchwords: PROCEDURE – notice of motion – order seeking to strike out plaintiff’s statement of claim – statement of claim too wide – struck out
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Civil Procedure Act 2005 (NSW)
Civil Liability Act 2002 (NSW)
Cases Cited: Ballina Shire Council v Ringland [1999] NSWSC 11
Banque Commerciale SA, En Liquidation v Akhil Holdings Limited [1990] HCA 11; 179 CLR 279
Commonwealth v Introvigne [1982] HCA 40; 150 CLR 258
McGuirk v The University of New South Wales [2009] NSWSC 1424
Ramsay v Larsen [1964] HCA 40; 111 CLR 16
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330
Williams v Eady (1893) 10 TLR 41
Williams v Spautz [1992] HCA 34; 174 CLR 509
Category:Procedural and other rulings
Parties: S1 (Plaintiff)
The Trustees of Marist Brothers (First Defendant)
Kieran Geaney (Second Defendant)
John Thompson as executor of the estate of the late Alman Dwyer (Third Defendant)
Jeffrey Crowe as executor of the estate of the late Robert Goodwin (Fourth Defendant)
Ronald Perry (Fifth Defendant)
Alexis Turton (Sixth Defendant)
Geoffrey Joy (Seventh Defendant)
Christopher Wade (Eighth Defendant)
Ernest Houston (Ninth Defendant)
Kelvin Canavan (Tenth Defendant)
Mark Gillogly (Eleventh Defendant)
Marshal McMahon (Twelfth Defendant)
Terence Heinrich (Thirteenth Defendant)
Salvius Glass (Fourteenth Defendant)
Representation:

Counsel:
A Bartley SC with F Tuscano (Plaintiff)
J Lonergan SC with S Moloney (Defendants)

  Solicitors:
Porters Lawyers (Plaintiff)
Colin Biggers & Paisley (Defendants)
File Number(s):2015/270439
Publication restriction:Nil

Judgment

  1. HER HONOUR: This case concerns whether parts of an amended statement of claim should be struck out. The plaintiff seeks damages for alleged sexual assaults by a teacher while a student. By notice of motion filed 2 February 2016, the defendants seek firstly, an order that the plaintiff’s statement of claim filed 15 September 2015 be struck out pursuant to r 14.28(1)(b) and (c) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); and secondly, further or in the alternative, that the plaintiff’s claim for exemplary damages be excluded pursuant to UCPR 6.22(a) and 6.22(b).

  2. The plaintiff is S1. The first defendant is the Trustees of the Marist Brothers. The second defendant is Kieran Geaney. The third defendant is John Thompson as executor of the estate of the late Alman Dwyer. The fourth defendant is Jeffrey Crowe as executor of the estate of the late Robert Goodwin. The fifth defendant is Ronald Perry. The sixth defendant is Alexis Turton. The seventh defendant is Geoffrey Joy. The eighth defendant is Christopher Wade. The ninth defendant is Ernest Houston. The tenth defendant is Kelvin Canavan. The eleventh defendant is Mark Gillogly. The twelfth defendant is Marshal McMahon. The thirteenth defendant is Terence Heinrich. The fourteenth defendant is Salvius Glass.

  3. The second defendant is the Provincial of the Marist Brothers. The third to thirteenth defendants were members of the Provincial Council of the Marist Bothers (“the Trustees”). The fourteenth defendant was a member of the Marist Brothers and the Principal of the Marist Brothers College, Penshurst.

  4. The defendants relied on the affidavit of Adam Stevens filed 18 March 2016. The plaintiff did not rely on any affidavit evidence.

The requirements of pleadings generally

  1. The plaintiff relies upon UCPR 14.28(1)(b) and (c). They read:

“14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

…

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.”

  1. UCPR 14.28(2) provides that the court may receive evidence on the hearing of an application for an order under subrule (1).

  2. In McGuirk v The University of New South Wales [2009] NSWSC 1424 (“McGuirk”) at [21] to [35], Johnson J set out the function of pleadings. I will only reproduce [30] to [35] of McGuirk as they are relevant here.

“Embarrassing pleadings

30 A pleading is embarrassing where it is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”: Meckiff v Simpson [1968] VR 62 at 70; Gunns Limited v Marr at [14]-[15]. 31 In Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 at [18], Tamberlin J explained the concept of “embarrassment” with respect to pleadings:

“Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434.”

32 A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276 at 5-6).

33 Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet: Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413 at 417-418. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading: Trade Practices Commission v David Jones (Australia) Pty Limited (1985) 7 FCR 109 at 112-114.

34 Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the Courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend: Rubenstein v Truth & Sportsman Limited [1960] VR 473 at 476; H 1976 Nominees Pty Limited v Galli (1979) 30 ALR 181 at 186.

35 It is not the function of the Court to draw or settle a party’s pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out: Turner v Bulletin Newspapers Co Pty Limited (1974) 131 CLR 69 at 72, 87-88, 97-98; Gunns Limited v Marr at [57]-[58]; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors [2005] NSWSC 926 at [55].”

  1. In Williams v Spautz [1992] HCA 34; 174 CLR 509 at 526-527, the High Court held that proceedings may be stayed as an abuse of process:

“…when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers.”

  1. It is well established that a party alleging that proceedings are an abuse of process bears a heavy onus: see Ballina Shire Council v Ringland [1999] NSWSC 11, Hidden J at [47].

  2. Overall, the function of pleadings is to state, with sufficient clarity, the case that has to be met by the defendants. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that is, a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA, En Liquidation v Akhil Holdings Limited [1990] HCA 11; 179 CLR 279 at 286-287 and 302-303.

  3. At the hearing of this motion, the plaintiff sought to rely upon an amended statement of claim. As the plaintiff’s case should be taken at its highest, the argument proceeded upon the pleadings as set out in the proposed amended statement of claim (“PASC”) (Ex A).

  4. The defendant does not seek to strike out the whole of the pleadings in the PASC. At the hearing the parties agreed to some further amendments. What now remains in dispute are paragraphs [2], [9], [10], [11], [12], [13A], [18](j) to (t). After the defendant’s submissions were made in relation to paragraph [23], which involves a claim for exemplary damages, the plaintiff agreed to redraft it.

The pleadings in the PASC

  1. From 1980 to 1982, the plaintiff attended Marist College, Penshurst (“the school”) (PASC [13]). At all material times, Greg Hammond (“the teacher”) taught at the school. The plaintiff alleges that between 1980 and 1982, while a student at the school, he was sexually abused by the teacher (PASC [15]). As a result of the abuse, the plaintiff alleges that he suffered psychiatric injury and psychological sequelae (PASC [16]). The plaintiff seeks damages, including exemplary damages, interest and costs (PASC [23]).

  2. In essence, the defendants do not dispute, firstly, that the plaintiff is entitled to seek damages for the alleged sexual assaults on the basis that the defendants owed the plaintiff a non delegable duty of care to exercise reasonable care for the safety of the plaintiff including to protect him from sexual assault by those who taught at the school; and secondly, that the plaintiff is entitled to claim that injury and harm to the plaintiff were caused by breaches of duty of care owed by the defendants (PASC [17] and [18]). Particulars of the breaches of duty of care have been pleaded. It is also claimed that the defendants were vicariously liable for the acts of the teacher in assaulting the plaintiff and the injury and harm suffered by the plaintiff (PASC [19]).

  3. In order to develop his argument in relation to the disputed paragraphs in the PASC, senior counsel for the plaintiff referred to Ramsay v Larsen [1964] HCA 40; 111 CLR 16 (“Ramsay”); Commonwealth v Introvigne [1982] HCA 40; 150 CLR 258 (“Introvigne”); and Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 (“Dederer”).

  4. In Ramsay, the High Court per McTiernan J, quoting from the judgment of Lord Esher in Williams v Eady (1893) 10 TLR 41 at 42, stated (at 21):

“… it was correctly laid down by the learned Judge, that the schoolmaster was bound to take such care of his boys as a careful father would take of his boys, and there could not be a better definition of the duty of a schoolmaster.”

  1. In Introvigne, the High Court stated (at 269 and 271):

“The liability of a school authority in negligence for injury suffered by a pupil attending the school is not a purely vicarious liability. A school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are on the school premises during hours when the school is open for attendance. In Carmarthenshire County Council v. Lewis [1955] UKHL 2; [1955] AC 549 the House of Lords held that the authority was liable for an injury to a motorist caused by a little child wandering onto the road through an unlocked gate at the school due to the failure of the authority to take reasonable steps to prevent the escape of the child. The Court of Appeal had held that a teacher, Miss Morgan was negligent in allowing the child to escape. However, by majority, the House of Lords held that the teacher was not negligent but that the authority was liable on the footing that it was in breach of duty to the child and to the plaintiff. Lord Reid said at 563:

“However careful the mistresses might be, minor emergencies and distractions were almost certain to occur from time to time so that some child or children would be left alone without supervision for an appreciable time. The actions of a child of this age are unpredictable, and I think that it ought to have been anticipated by the appellants or their responsible officers that in such a case a child might well try to get out onto the street and that if it did a traffic accident was far from improbable. And it would have been very easy to prevent this, and either to lock the gates or, if that was thought undesirable, to make them sufficiently difficult to open to ensure that they could not be opened by a child so young that it could not be trusted alone on the street.”

…

There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school. This was the view expressed by Kitto J. in Ramsay v. Larsen (1964) 111 CLR, at p 28. The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants.

…

By establishing a school which was “maintained” on its behalf at which parents could enrol their children for instruction pursuant to the obligation imposed on them by the Ordinance, the Commonwealth, in my opinion, came under a duty of care to children attending the school. The nature and scope of that duty of care was co-extensive with the duty of care owed by any authority or body conducting a school to pupils attending the school. It was a duty to ensure that reasonable care was taken for the safety of the pupil which was breached in the circumstances of this case, in the two respects already mentioned. It was, as I see it, a duty directly owed by the Commonwealth for breach of which it is liable. It was not a case of vicarious liability for the omissions of the acting principal and the members of his staff, though had it been necessary to do so, the Commonwealth might have been found liable on this score.”

  1. In Dederer, the High Court (per Gummow J) set out the settled legal principles in relation to negligence. They are as follows (at [18]):

“… These principles may be restated shortly. First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.”

  1. The provisions of the Civil Liability Act 2002 (NSW) are also relevant, in particular ss 5B and 5C.

  2. I shall now deal with the paragraphs of the PASC that are in dispute.

Paragraphs [2] and [9]

  1. Paragraph [2] pleads that between 1960 and 1982, the first defendant by its members, servants and/or agents operated and had the care, management and control of a network of Marist Brothers schools throughout Australia (“Marist Brothers schools”) and names 30 Marist Brothers schools, 11 of which are also mentioned in paragraph [9] of the PASC.

  2. I shall set out paragraph [9] of the PASC in full as this pleading is similar and relevant to some of the remaining paragraphs in dispute.

  3. Paragraph [9] pleads:

“Prior to the plaintiff’s abuse, the defendants knew or ought to have known of the following:

a) In or about 1960, the Principal of Marist College Randwick, a Marist Brother knew that Brother Kostka Chute (“Kostka”) had touched and fondled the genitals of a child at that school.

b) In or about 1961 and 1962, they knew or ought to have known that Kostka had sexually abused three children at St Anne's Primary School, Bondi.

c) In 1962 Brother Phillips, a Marist Brother and the Principal of St Anne's College Bondi and Brother Walter Cranney, a Marist Brother and teacher at St Anne’s College Bondi were told by the mother and father of a child at that school that Kostka had sexually molested their child.

d) In 1965, a student told the Principal of Villa Maria Primary School Hunter’s Hill that Kostka had been sexually assaulting him and another child at that school.

e) In or about 1967 Othmar Weldon, the Provincial of the Marist Brothers was told by Kostka that he had sexually abused a child at St Joseph’s School Lismore.

f) In 1969 the Provincial and Provincial Council of the Marist Brother issued a ‘canonical warning’ to Kostka in respect of his sexual abuse of children at Marist Brothers schools and then removed him from St Carthage’s School and promoted him to Principal at Marist Brothers, Penshurst.

g) Between 1969 and 1972 the Provincial of the Marist Brothers knew that whilst Kostka was the Principal of Marist Brothers Primary School Penshurst he sexually abused a child of that school.

h) In 1970 Robert “Dolly” Dunn, a notorious convicted paedophile, and a teacher at Marist College Penshurst and the Principal Brother Simons knew that a child at the school was being sexually molested by Kostka. In response to a complaint from the child’s father about the sexual molestation Brother Simons arranged for the child to be transferred to Marist College Kogarah but he took no action against Kostka.

i) In 1970 Brother Crispin the principal of Marist College Canberra was told by the mother of a child at that school that Brother Phillip Slattery had sexually molested her son in placing his hands inside her child’s trousers, touching the child’s penis and penetrating her child’s anus with his finger.

j) In 1973 Brother Brendan, the Principal of Marcellin College Junior School Coogee, was told by the mother of a child at the school that Brother Edward Hosey had sexually molested her son.

k) In 1973 Brother Brendan, the Principal of Marcellin College Junior School Coogee, was told by a child at that school that Brother Edward Hosey had sexually molested him.

I) In 1973 Brother Xavier was told on three occasions by a mother of a child at Marcellin College Coogee that Brother Edward Hosey had sexually molested her child.

m) In 1974 Brother Bernard, the Principal of St Gregory’s College Queanbeyan was told by the mother of a child at that school that Brother Francis Richardson was making the children in his class strip naked and then perform physical exercises whilst nude.

n) In 1974 Brother Brendan the Principal of Marcellin College Junior School Coogee was told by a child at that school that Brother Edward Hosey had sexually molested him.

o) In or about 1975 the Provincial of the Marist Brothers referred Kostka to Fribourg, Switzerland for treatment because of Kostka’s known history of child sexual abuse of children at Marist Brothers schools.

p) In 1976 Brother Bernard the Principal of St Gregory's College Queanbeyan was told by the mother of a child at that school that she was concerned about Brother Francis Richardson and his behaviour towards children in placing his hands in their pockets.

q) In 1976, the Marist Brothers at Marist College Canberra, knew that Kostka had taken a child from the school into his private bedroom.

r) In 1977, Marist Brothers at Marist College Canberra, knew that Kostka was inviting children from that school to the monastery and his private bedroom for dinner.

s) In 1978, the Principal of Marist College Canberra, was told by a lay teacher and children at that school that Br Stephen had sexually molested two children in hotel rooms in New Zealand during a school rugby union tour.

t) Between 1977 and 1979 Marist Brothers at Marist College Canberra knew that Brother Maurice Shaw had sexually molested children at that school but agreed to protect him provided that he kept a low profile and that the abuse did not come to the attention of the parents of children at that school.

u) In 1979 a number of Marist Brothers knew that Brother Ross Murrin was taking children from St Augustine’s College Cairns into his private bedroom.

v) In about 1979 whilst at St Augustine’s College Cairns Brother Ross Murrin had removed the shower curtains from the bathrooms and had been watching the children whilst they showered.

w) In 1979, the Principal of Marist College Canberra was told by a parent of a child of that school that Kostka was forcing children to sit on his lap and comb his hair, showing the children pornography, making children sit on his lap and masturbating under his cassock whilst teaching.

x) In or about 1979 and 1980, the Principal of Marist College Canberra was told by a female lay teacher that Brother Maurice Shaw had raped a child of that school.

y) In 1980, the Principal of Marist College Canberra, was told by a child at the school that Brother Gregory Sutton had sexually molested him.

z) In or about 1980 or 1981 Brother Gerald Burns the Principal of St Augustine College Cairns was told by a parent of a child at that school that Brother Ross Murrin was sexually abusing his child. Brother Gerald Burns gave the child victim of that sexual abuse and his brother 2 tickets to the circus in response to the complaint made about the abuse.

aa) In 1980 Brother Andrew, Brother Darryl and Brother Peter knew that Brother Ross Murrin was taking children of St Augustine’s College Cairns into his private bedroom.

bb) In 1980 the Marist Brothers at St Augustine’s College Cairns knew that the parents of a child at that school had complained that their child had been sexually molested by Brother Ross Murrin at a Year 8 school camp.”

  1. This paragraph alleges that the defendants either knew or ought to have known of these incidents of sexual abuse that span from 1960 to 1980, the latter being the same year that the plaintiff started at the school. In other words, paragraph [9] sets out what occurred at other Marist Brothers schools across Australia by teachers and/or priests over a period of 20 years from 1960 to 1980.

Paragraph [10]

  1. Paragraph [10] relevantly pleads that:

“10   The defendants and the Marist Brothers failed to take any or any reasonable action in response to their knowledge of the childhood sexual abuse within their schools as pleaded in paragraph 9 including:

…”

(The particulars given in [9] are repeated here.)

  1. Paragraph [10] links the defendants to the alleged actual or constructive knowledge of the alleged incidents of sexual abuse set out in paragraph [9] and pleads that they failed to take any reasonable action in response.

  2. Senior counsel for the defendants submitted that, firstly, paragraph [9] particularises an array of conduct that is alleged to have taken place prior to the plaintiff’s alleged abuse, but there is no allegation as to how that conduct gives rise to a cause of action in the case as pleaded in paragraphs [13] to [18]; secondly, there is no allegation or particularisation of knowledge or its form in respect of each defendant; the mere recitation of a series of events is not and cannot be a proper particular and contravenes UCPR 15.4; thirdly, the vast array of allegations contained in particulars (a) to (bb) serve only to obfuscate the currently pleaded proceedings and introduce an irrelevance to it thus the pleading is both embarrassing and an abuse of the processes of the court; fourthly, the required proof and investigation of matters across decades concerning multiple incidents and requires a very large number of witnesses and has an obvious prospect of producing delay; and finally, this pleading has no relevance to the plaintiff’s causes of action against this particular school in relation to a particular perpetrator (T16.38-42).

  3. So far as paragraph [10] is concerned, the defendants submitted that the pleading hangs in the air and is unrelated to any alleged material fact giving rise to duty, breach or damage. There is no identification of which act in paragraphs [10](a) to (h) was unreasonably taken or not taken by which defendant. The defendants assert that this paragraph seeks to import into it 28 occasions criticised in paragraph [9] but by doing so seeks to attach 8 criticisms to each of the 28 occasions, but without proper identification of which criticism relates to each occasion and how that criticism arose in relation to any particular action of each defendant. The defendants say that paragraph [10] is impossibly vague and broad and ought to be struck out.

  4. For these reasons the defendants submitted that the pleadings in [2], [9] and [10] are embarrassing and an abuse of process, therefore they should be struck out.

  5. Overall senior counsel for the defendants submitted that paragraphs [2], [9] and [10] amount to the plaintiff conducting a Royal Commission into Marist Brothers schools via senior counsel for the plaintiff prosecuting what should be confined to a material facts case of asserted sexual abuse by a teacher at the school on the part of the defendants (T19.23-27).

  6. The plaintiff submitted that while it would be highly relevant to be able to prove that the teacher was known to the defendants as a child sexual predator that is not where the reasonableness ends. According to the plaintiff, for many, many years, people who ran schools pleaded ignorance to the existence of child sexual abuse. Senior counsel for the plaintiff also submitted that in this case, the purpose of the pleadings is to allege that “the phenomenon” of child sex abuse was not “a phenomenon” about which information first emerged when the teacher abused the plaintiff and without this background it may be difficult to allege that a school should protect children against a phenomenon that nobody could possibly know about. He submitted that the decades of litigation in relation to dust diseases are closely analogous with these cases because both are system cases (T28.40-50; T29.1-3).

  7. While senior counsel for the plaintiff says he is not alleging that the defendants had a tendency to abuse children, he is alleging that there was so much knowledge vested in the first defendant, as a body corporate, which can only act through its servants and agents, that is, through the Trustees, that they should have been doing something about it and those facts, the plaintiff says, are the particulars of negligence. According to the plaintiff, that puts the framework around why the plaintiff makes the allegations concerning prior knowledge and gives particulars of negligence at paragraph [9] (T29.47-50; T30.1-10).

  8. The plaintiff further submitted that the fact that they can only now identify childhood sexual abuse in schools run by the defendants between 1960 and 1982, in 11 of the 32 schools, makes those 11 clearly relevant.

  9. What paragraph [9] is asserting is that from 1960 to 1982 all of these alleged sexual assaults were known or should have been known by the first defendant through the 13 named Trustees. There is no dispute that the duty that the defendants owed to the plaintiff was to take reasonable care to prevent him being sexually abused during the period he attended the school, namely between 1980 and 1982.

  10. The particulars of breach of duty of care in paragraph [9] extend beyond the duty to protect the student from being sexually abused by the teacher. They are that the first defendant failed to institute and maintain a system of mandatory reporting of known or suspected cases of sexual assaults upon children of the school to external authorities ([18](e)); and failed to institute and maintain a program to educate children of the school in relation to their right to be free from sexual abuse at the school and to report any sexual abuse to an appropriate designated person or persons or alternatively to his parents or to the police ([18](f)). These particulars are not the subject of objection.

  11. I accept that if the school principal (the fourteenth defendant), the trustees or other teachers of the school were aware of prior sexual abuse at the school, particularly by the teacher in the period of shortly before 1980 and up to 1982 (when the plaintiff left the school), those particulars would be relevant to the scope of the duty of care. Sexual abuse of a pupil at another school from 1960 onwards and after the period when the plaintiff was allegedly sexually abused does not inform the scope of the duty of care owed to the student who attended the school from 1980 to 1982. Hence, paragraphs [2], [9] and [10] are far too wide and are embarrassing. They should be struck out.

Paragraph [11]

Paragraph [11] is an extension of paragraph [9]. It pleads that between 1980 and 1987, after the plaintiff’s abuse, the defendants knew or ought to have known of the specified incidents of sexual abuse in Marist Brothers schools. Most of these incidents took place in other Marist Brothers schools across Australia and after the plaintiff left the school. Senior counsel for the defendants submitted firstly, that this pleading prejudices the defendants and also results in protracted delay; secondly, it is unrelated to any alleged material fact giving rise to duty, breach or damage; and finally, it is embarrassing, an abuse of process and ought to be struck out.

  1. For the reasons given earlier, it is my view that the behaviour of teachers or priests at other Marist Brothers schools across Australia, both before and after the plaintiff’s attendance at the school, do not fall within the scope of the duty of care. There is, however, an exception contained in paragraph [11](b) that pleads:

“b) In 1981 or 1982 Brother Salvius the Principal of Marist Brothers Penshurst was told by a mother of child at that school that Robert “Dolly” Dunn, a notorious convicted paedophile, and a teacher at that school had been sexually molesting her son.”

  1. This occurred while the plaintiff was at the school and is relevant to the case in dispute. Aside from [11](b) the balance of paragraph [11] in its current form is embarrassing and should be struck out.

Paragraph [12]

  1. Paragraph [12] flows on from paragraph [11]. Paragraph [12] relevantly pleads:

“12   The defendants and the Marist Brothers failed to take any or any reasonable action in response to their knowledge of the childhood sexual abuse within their schools as pleaded in paragraph 11 including:

(a) Ignoring or dismissing the complaint without investigation in the instances referred to in paragraph 11a, b, c, d, e, f, g, h, i, j, k, l, m.

…”

  1. The defendants submitted that the vast breadth of paragraph [12] makes it embarrassing to plead to, there are no particulars of any allegation and there is no proper allegation or particularisation of alleged knowledge as against each defendant and it should be struck out.

  2. The defendant submitted that what paragraph [12] actually says is that the first defendant and the 13 named defendants failed to take any action against child sexual abuse within the schools they worked at and, even if it is talking about action in relation to these schools, it is not pleaded that they individually knew or that they had any particular role in relation to these 11 schools out of the 30 schools specified in paragraph [2] (T21.24-29). There is no identification of which act in paragraph [12](a) to (h) was reasonably taken or not taken by which defendant. Counsel for the defendants submitted that this paragraph seeks to import into 13 occasions criticisms of those 13 occasions but without proper identification of which criticism relates to each occasion and how that criticism arose, therefore the paragraph should be struck out.

  3. This paragraph is similar to paragraph [10] but refers mainly to prospective allegations of sexual assaults on students by priests and teachers at other Marist Brothers schools across Australia. The allegations relate to the action or lack of action taken by the defendants when they knew or ought to have

known of sexual abuse by teachers or priests across Australia from 1980 onwards. For the same reasons as I have given earlier, with the exception of [12](a) in so far as it refers to paragraph [11](b), it is my view that the balance of paragraph [12] is embarrassing and should be struck out.

Paragraph [13A]

  1. Paragraph [13A] pleads:

“13A The plaintiff relies on the material facts pleaded in paragraph 11 and 12 above as evidence of the Marist Brothers’ and the defendants’ failure by themselves and/or their servants and/or agents, to take any or any reasonable steps to prevent child sexual abuse in their schools.”

  1. Senior counsel for the defendants submitted that the same problem arises here, namely, the paragraph pleads that the asserted reports to multiple people in multiple schools after the plaintiff’s sexual abuse somehow grounds a liability on the part of the Marist Brothers and the named 13 defendants and that they failed to take any reasonable steps not to prevent the child sexual abuse in their school and this is completely irrelevant (T22.7-18).

  2. What the defendants did after the plaintiff was allegedly sexually abused does not inform the content of the duty of care and its breaches. This prospective pleading is even more irrelevant than the pleadings in the earlier paragraphs [9] and [10]. It is embarrassing and should be struck out.

Paragraph 18

  1. The defendants do not object to the whole of paragraph [18]. The particulars that are confined to the plaintiff and the teacher are not the subject of objection.

  2. Paragraph 18 relevantly pleads:

“18 The sexual assault, injury and harm to the plaintiff were caused by breaches of duty of care owed by the defendants.

Particulars of the first defendant’s breaches of duty of care

…

j) Failing to take any or any adequate steps to remove child sexual abusers from their schools having regard to the knowledge pleaded above;

k) Transferring child sexual abusers from school to school in response to complaints about abuse of children within their schools;

I) Failure to exercise due skill and care in the management of their network of Marist Brothers Schools;

m) Promoting known child abusers to positions of responsibility within their schools;

n) Failure to remove known child abusers from their schools;

o) Ignoring or dismissing complaints of childhood sexual abuse in their schools;

p) Transferring known child abusers from school to school;

q) Failing to report the activities of known child abusers to the police or other relevant authorities;

r) Actively dissuading complainants from reporting childhood sexual abuse to the police or other relevant authorities;

s) Failing to take any or any effective steps to prevent childhood sexual abuse within their schools;

t) Representing to Commonwealth, State and Territory authorities that it was competent to have the care, management and control of school children when it lacked such competence”.

  1. The defendants say that these particulars ought to be struck out for the following reasons:

  1. Paragraph [18](j): there is no identification of the persons said to constitute the child sexual abusers and hence the paragraph is impermissibly vague. The contention does not identify a period of time for the failure or the places where the failures took place. Finally there is no proper particularisation of the knowledge of each defendant, as there must be.

  2. Paragraph [18](k): there is no identification of the persons said to constitute the child sexual abusers and hence the paragraph is impermissibly vague. There is no identification of the schools referred to. The contention does not identify a period of time for the contended failures. There is no identification of the complaints referred to, nor the children referred to.

  3. Paragraph [18](l): the breadth of this particular renders it meaningless and embarrassing and is productive of prejudice and ought be struck out.

  4. Paragraph [18](m) to (r): all of these sub paragraphs are embarrassing, impossibly vague and are unable to be pleaded to and thereby cause prejudice in the conduct of the case. There is no identification of the facts in question by reference to people, places or dates.

  5. Paragraph [18](t): there is no identification of what representations were made, by whom and when. The paragraph ought to be struck out.

  6. Paragraphs [18](i) and (u) are no longer pressed.

  7. Paragraph [18] generally: the plaintiff is seeking to introduce wide ranging allegations and a vast array of alleged conduct in a wide number of unidentified schools over an unidentified period of time by a set of unidentified persons, rendering the paragraph wholly embarrassing. The plaintiff is seeking to introduce a set of facts in the most general of terms which is unexplained by reference to the essential matters of this case – duty, breach and damage. The whole of the paragraph is wholly objectionable.

  1. The particulars in paragraph [18] are wide ranging and a general wrap of general criticisms that may be made against the defendants. They do not inform the scope of the duty of care owed towards the plaintiff by the school. In my view, they also should be struck out. I need not consider whether these pleadings that are objected to are also an abuse of process.

Conclusion

  1. The PASC does not comply with s 56 of the Civil Procedure Act 2005 (NSW). The wide pleading in this document does not facilitate the just, quick and cheap resolution of the real issues in the proceedings.

  2. Leave should not be granted to file the PASC in its current form. Paragraphs [2], [9], [10], [11] (excluding [11](b)), [12] (excluding [12](a)), [13A] and [18](j) to [t] of the PASC are embarrassing and should be struck out. The PASC now has gaps in it. The statement of claim should be struck out.

  3. The defendants did not oppose the filing of an amended statement of claim. This is the first time the plaintiff has sought to amend his statement of claim. In the exercise of my discretion, the plaintiff should be afforded the opportunity to file a new and cohesive amended statement of claim. An amended statement of claim should be filed within 28 days.

  4. Costs are reserved.

The Court orders that:

(1)   The statement of claim is struck out.

(2)   The plaintiff is to file and serve an amended statement of claim that complies with paragraph [51] within 28 days.

(3)   Costs are reserved.

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Decision last updated: 14 July 2016

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Cases Cited

14

Statutory Material Cited

3

McGuirk v University of New South Wales [2009] NSWSC 1424
Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393
Seidler v Carroll and O'Dea (No 2) [2013] NSWSC 1172