The Council of Trinity Grammar School v Anderson

[2019] NSWCA 292

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	The Council of Trinity Grammar School v Anderson [2019] NSWCA 292
Hearing dates:	27 June 2019; 11 July 2019
Date of orders:	09 December 2019
Decision date:	09 December 2019
Before:	Bathurst CJ at [1]; Payne JA at [508]; Simpson AJA at [509]
Decision:	(1)   Grant the applicant leave to appeal. (2)   Order the applicant file a Notice of Appeal in the form of the proposed Further Amended Draft Notice of Appeal within 7 days. (3)   Allow the appeal. (4)   Set aside the orders of the primary judge. (5)   Order the proceedings be permanently stayed. (6)   Order that the respondent pay the applicant’s costs of the appeal and the proceedings in the Court below and be entitled to an indemnity certificate under the Suitors Fund Act 1951 (NSW) if eligible.
Catchwords:	CIVIL PROCEDURE - Court of Appeal - Stay of proceedings - Application for permanent stay of proceedings concerning sexual assaults allegedly perpetrated by teacher against student between 1974 and 1976 - Alleged abuse did not occur on school grounds - Whether primary judge erred in the exercise of discretion to refuse a permanent stay of proceedings - Whether discretion should be re-exercised - Whether inquiries made by applicant to ascertain if material available were adequate - Whether applicant was responsible for its difficulty in dealing with proceedings by not investigating the claim earlier. LIMITATION OF ACTIONS - Personal injury - Child abuse - Legislative removals of previous limitation periods - s 6A Limitation Act 1969 (NSW) - Sexual assaults alleged to have occurred between 1974 and 1976 - Whether proceedings should be permanently stayed.
Legislation Cited:	Evidence Act 1995 (NSW) Limitation Act 1969 (NSW) Suitors Fund Act 1951 (NSW)
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Armes v Nottinghamshire County Council [2017] UKSC 60 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197 Connellan v Murphy [2017] VSCA 116 Cox v Journeaux (No 2) (1935) 52 CLR 713 at 720; [1935] HCA 48 Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46 Jaycar Pty Limited v Lombardo [2011] NSWCA 284 Lane v Registrar of Supreme Court (NSW) (1981) 148 CLR 245; [1981] HCA 35 Medich v R (2015) 97 NSWLR 358; [2015] NSWCCA 281 Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 R v Davis (1995) 57 FCR 512 Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 S v Attorney General [2003] 3 NZLR 450; [2003] NZCA 149 State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Zelden v Sewell Henamast Pty Limited v Sewell [2011] NSWCA 56
Texts Cited:	Nil
Category:	Principal judgment
Parties:	The Council of Trinity Grammar School (applicant) Robert Anderson (respondent)
Representation:	Counsel: N Hutley SC with E Holmes and A Oakes (applicant) J Maconachie QC with J Sharpe (respondent)   Solicitors: Thompson Cooper Lawyers (applicant) Porters Lawyers (respondent)
File Number(s):	2018/271187
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2018] NSWSC 1633 Date of Decision: 24 October 2018 Before: Rothman J File Number(s): 2016/29572

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Council of Trinity Grammar School (the applicant) sought an order that civil proceedings instituted by Robert Anderson (the respondent) on 25 January 2016 for damages arising from sexual assaults alleged to have occurred whilst he was a student at the school be permanently stayed. The primary judge dismissed the motion and Trinity has sought leave to appeal from that decision.

The respondent was a student in sixth form in 1974 at Trinity Preparatory School (the Preparatory School) and subsequently attended Trinity Senior School in 1975 and 1976. Mr Futcher (Futcher) commenced teaching at the Preparatory School in 1974. He taught sixth form but did not teach the respondent’s class. The Headmaster of Trinity at the time of the assaults was Mr Wilson-Hogg and the Reverend Sandars was the Master in Charge of the Preparatory School. The Reverend Sandars was described as having run the school in “an almost authoritarian fashion”.

On 11 April 1997 the respondent complained to the police that he had been sexually assaulted by Futcher over a period of at least 4 to 5 years whilst a student at the Preparatory School and that some of the assaults occurred during organised school camps in Lake Macquarie and Colo River where Futcher was alleged to have been the supervisor in the course of his employment as a teacher at the Preparatory School. Trinity was first notified of the sexual abuse perpetrated by Futcher against the respondent in 1997 by the police. At that stage, the claim by the respondent was statute-barred.

On 7 September 2004, Hannigans solicitors made a claim on behalf of the respondent and on 10 December 2004, indicated an intention to institute proceedings by 20 December 2004. At that stage, although Mr Wilson-Hogg had died on 6 May 1997, the Reverend Sandars was still alive. Trinity through its solicitors sent a letter which denied liability and asked on what basis the respondent’s claim was not statute-barred by reason of the Limitation Act 1969 (NSW). Nothing further was heard from Hannigans. The position under the Limitation Act as it then stood was that an application for extension could have been made under s 60G. The solicitors for the respondent did not reply to the letter.

The Reverend Sandars died on 26 May 2012. Nothing further was heard from those acting for the respondent until 12 June 2014. In September 2004, Trinity was advised that it was “unlikely” that the respondent would bring a claim against Trinity, citing as one reason that the respondent’s claim was statute-barred unless leave could be obtained to bring the claim out of time. In October 2014, Porters Lawyers, acting for the respondent, stated that the respondent intended to apply for an extension of time under the Limitation Act.

On 28 April 2015, Mr Roderick West, the successor Headmaster to Mr Wilson-Hogg was interviewed by Police. On 25 January 2016, Mr West died. On 17 March 2016, s 6A of the Limitation Act came into effect abolishing the time bar in respect of civil proceedings for damages arising out of child sexual assaults.

The respondent’s Amended Statement of Claim pleaded that the respondent was sexually assaulted by Futcher between 1974 and 1976. The Amended Statement of Claim pleaded that Trinity breached its non-delegable duty of care owed to the respondent and was vicariously liable for the acts of Futcher in sexually assaulting the plaintiff and the harm suffered by the respondent.

The assaults alleged fell into four categories. The first allegation of sexual assault pleaded was that Futcher showed the respondent pornographic materials whilst transporting him from the Preparatory School to the school’s sportsground in 1974. The second set of allegations concerned assaults which occurred at Futcher’s unit in Drummoyne during 1974 and 1975. The third set of allegations concerned incidents which occurred when Futcher picked up the respondent from Trinity Grammar in his van no earlier than 1975. The fourth set of allegations pertained to assaults which were alleged to have occurred at organised school camps in the Lake Macquarie and Colo River areas and at Camp Chakola in the Kangaroo Valley. Trinity accepted that Camp Chakola was a school camp and that it was in a position to meet the allegations in respect of that camp.

There were five main issues on appeal.

Should leave to appeal be granted?

It is appropriate that leave to appeal be granted as there are “powerful arguments that the trial judge erred in law such that the discretion should be re-exercised”, the incorrect exercise of discretion would cause the applicant substantial injustice and the approach that the court should take in cases of this nature is “a matter of some considerable importance”: [419]-[421] (Bathurst CJ); [508] (Payne JA); [509] (Simpson AJA).

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39; Jaycar Pty Limited v Lombardo [2011] NSWCA 284; Zelden v Sewell Henamast Pty Limited v Sewell [2011] NSWCA 56; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 referred to.

Did the primary judge err in the exercise of his discretion to refuse a permanent stay of the proceedings?

The primary judge erred in the exercise of his discretion by failing to give separate consideration to the claims based on a breach of non-delegable duty and the claims based on vicarious liability which require different, although potentially overlapping, inquiries: [432]-[434] (Bathurst CJ); [508] (Payne JA); [509] (Simpson AJA).

State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 referred to.

The primary judge erred in the exercise of his discretion by concluding that all available material had not been sought from the police and that it had not been established that a statement from Mr Wilson-Hogg or the Reverend Sandars was not in existence: [435]-[439] (Bathurst CJ); [508] (Payne JA); [509] (Simpson AJA).

The primary judge erred in the exercise of his discretion by conflating the various camps during which it was alleged the respondent was sexually assaulted: [440]-[441] (Bathurst CJ); [508] (Payne JA); [509] (Simpson AJA).

Should the discretion be re-exercised?

Absent the Reverend Sandars, Trinity is “not in a position to deal meaningfully” with the alleged breach of non-delegable duty in respect of the first, second and third sets of allegations of sexual assault. The absence of the Reverend Sandars and any records from the time to show the existence or non-existence of systems or procedures to protect students from abuse and the lack of assistance obtained from the statements and affidavits of teachers means that Trinity is unable to deal with whether the first, second and third sets of allegations were caused by a breach of its non-delegable duty: [448]-[463] (Bathurst CJ), [508] (Payne JA); [509] (Simpson AJA).

Absent the Reverend Sandars, Trinity is “unable to provide a meaningful response to the claim” of vicarious liability in respect of the first, second and third sets of allegations of sexual assault. Trinity is not in a position to ascertain whether it acquiesced in or authorised Futcher to transport the respondent to sport, to pick him up to take him to the unit at Drummoyne or to pick him up in his van: [464]-[467] (Bathurst CJ); [508] (Payne JA); [509] (Simpson AJA).

Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 referred to.

Due to the effluxion of time, the unavailability of witnesses, particularly the Reverend Sandars and the absence of documentation concerning the attendance of pupils at the camps, Trinity is unable “to deal in any meaningful fashion with the critical question of whether Futcher was placed by Trinity in a position of power and intimacy which gave the occasion for the wrongful acts”: [468]-[477] (Bathurst CJ); [508] (Payne JA); [509] (Simpson AJA).

Were the inquiries made by Trinity adequate?

The inquiries made by Trinity to ascertain if material was available to enable it to meet the claim were reasonable. It was not necessary for Trinity to “pursue any line of inquiry however remote which may, as a matter of mere possibility, produce some information which may be of assistance in dealing with the issue” as that would “pose an unreasonable burden on the applicant” and “be oppressive and unfairly burdensome”: [478]-[490].

Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20 referred to.

Was Trinity responsible for the position in which it finds itself by not investigating the claim earlier?

The difficulty in which Trinity finds itself in dealing with the proceedings was not due to its own neglect and default. It was not unreasonable for Trinity to adopt the position that the claim was statute-barred and not investigate its underlying merits. Further, there is nothing to suggest that any further material would have been available in the period between 12 June 2014 and February 2016 when Mr Thompson was instructed and investigations commenced: [491]-[505] (Bathurst CJ); [508] (Payne JA); [509] (Simpson AJA).

Lane v Registrar of Supreme Court (NSW) (1981) 148 CLR 245; [1981] HCA 35; British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197 referred to.

Judgment

1. BATHURST CJ: In 1969, the respondent, Robert Anderson (the respondent), commenced his education at Trinity Preparatory School (the Preparatory School). He completed his primary education at that school in 1974. During that year he was in Form 6S, his Form Master being Mr Brian Simms. He spent the following two years at the Trinity Senior School, leaving the school in 1976. The Senior School occupied separate premises to the Preparatory School.

2. Mr Neil Futcher (Futcher) commenced employment as a teacher at the Preparatory School in 1974. The school records show that he remained employed at the school until the end of 1977. He taught sixth form at the Preparatory School but did not teach the respondent’s class.

3. The respondent alleges in these proceedings that he was sexually assaulted by Futcher whilst he was attending the school. The precise allegations are set out in the Amended Statement of Claim filed in the proceedings on 14 December 2017. I have extracted the relevant paragraphs in which the allegations are made at [29] to [37] below. The respondent alleges that the applicant (Trinity) is liable for the loss and damage he has suffered as a result of the assaults.

4. The Headmaster of Trinity at the time of the assaults was a Mr James Wilson-Hogg (Mr Wilson-Hogg), whilst the Reverend Keith Sandars (the Reverend Sandars) was the Master in Charge of the Preparatory School. Both are deceased. Trinity’s consequent inability to obtain instructions from each of them forms an important element in its application for a stay of proceedings.

5. On 11 April 1997, the respondent complained to the police that he had been assaulted by Futcher. He alleged that some of the assaults occurred while he was a student at the Preparatory School and that some took place during organised school camps in the Lake Macquarie and Colo River areas where Futcher was the supervisor in the course of his employment as a teacher at the Preparatory School. It was also alleged that further sexual assaults took place outside school hours in a home unit in the Gladesville area. It was alleged that the assaults took place over a period of at least 4 to 5 years.

6. The confidential police report dated 28 May 1997 noted that the Chief of Detectives at Ballina Police Station had made “discreet inquiries” of Mr Milton Cujes, who was described in the police report as the Principal of Trinity Grammar Preparatory School (he was in fact the Headmaster of the school), who had informed him that Futcher was no longer a member of staff. The inquiries of Mr Cujes by the Chief of Detectives seem to be the first time that Trinity was notified of the claim. The police report does not specify when these inquiries were made.

7. On 17 June 1997, the Headmaster’s secretary wrote to a Detective Sergeant Farrell giving him some information concerning all students who were at Trinity at the time and stated that the Trinity archivist would investigate the records to ascertain any information concerning another teacher, a Mr Neville Betteridge (Betteridge).

8. It should be noted that Mr Wilson-Hogg died on 6 May 1997.

9. On 7 September 2004, a firm of solicitors, Hannigans, wrote on behalf of the respondent to the Director of the Professional Standards Unit for the Diocese of Grafton stating that the respondent “attended camps to [sic] Lake Macquarie or the Colo River supervised by teachers from the school”. The letter enclosed two statements from the applicant and asked if the matter could be negotiated on an unlitigated basis. The letter was forwarded to Mr Cujes.

10. On 10 December 2004, Hannigans wrote to Trinity indicating an intention to institute proceedings by 20 December 2004 unless a formal response was received to the letter of 7 September 2004 by that date.

11. By letter dated 16 December 2004, Emil J Ford & Co Lawyers responded on behalf of Trinity. In a letter headed “Without Prejudice except as to Costs” they commented as follows:

“…having reviewed your client’s statements carefully, we cannot see any connection with our client, other than that the alleged perpetrator is described as having been an employee of our client. That alleged employment status does not seem to have played any part in the events described by your client. None of the alleged assaults are said to have been committed on property owned by, or related to, our client, nor are any of the events described (either as assaults or precursors to assaults) connected in any way with our client. In any event, even if there were some way in which the employment of the alleged perpetrator with our client was said to have provided some context for the offences, you will no doubt be well aware of the very limited basis on which an employer may be held liable for criminal conduct by an employee of the type described by your client to police.

In order that we may advise our client and obtain instructions, could you please indicate the basis on which it is said that our client has some liability in relation to the events described in your client’s police statements? Please also indicate the basis on which it is said that your client is not statute barred in relation to his alleged claim by reason of the Limitation Act 1969 (NSW).”

12. Nothing further was heard from Hannigans.

13. In an affidavit filed on behalf of Trinity, its Bursar, a Mr Dungan, gave evidence that because of the Headmaster’s contact with the police in 1997 he believed the complaints were being investigated, or had been investigated by the police.

14. On 26 May 2012, the Reverend Sandars died.

15. Nothing further seems to have occurred so far as Trinity was concerned until 27 May 2014 when Sergeant Pollock of Ashfield Police requested certain records from Trinity.

16. On 12 June 2014, a firm of solicitors, Porters Lawyers stated that they were acting for the respondent in his claim for damages and sought information “pursuant to Part 5.2 of the Uniform Civil Procedure Rules 2005” of the identity and whereabouts of the owner of the school, the operator of the school, the principals of the school at the relevant time, Futcher’s employer, the entity responsible for supervising him and the insurer of the school. On 25 June 2014, Emil Ford Lawyers replied on behalf of Trinity denying any obligation to supply the information, enclosing a copy of its letter to Hannigans and asking for a response to its inquiry in their letter of 16 December 2004 concerning the Limitation Act 1969 (NSW).

17. On 8 August 2014, Porters Lawyers repeated their request. In addition, they sought records relating to complaints against Futcher, certain insurance records and details of complaints made to “Towards Healing” concerning Futcher. The request was stated to be made “to allow for settlement discussions to proceed”. On or about 25 September 2014, the police executed a search warrant against Trinity seeking all student and teacher records, school reports, class lists and school photographs in relation to the respondent and certain other pupils and in respect of Futcher and Betteridge.

12. On 17 September 2004, a letter was sent from Emil Ford & Co Lawyers to Mr Cujes. The letter was headed “Futcher and Betteridge”. The contents of the letter pertaining to the “likelihood of Mr Anderson making a claim” are extracted below:

“We refer to our telephone conversation on 15 September 2004 and to Mrs Xuereb’s letter of the same day. As we understand it, the School Council seeks our advice on

(a) the likelihood of Mr Anderson making a claim against the School; and

(b) whether the School should join the Diocesan Pastoral Care and Assistance Scheme and, if, so, how that Scheme would relate to the School’s existing insurance cover.

Likelihood of Claim

We are, of course, unable to say whether or not Mr Anderson is likely to bring a claim against the School. We say this both because we do not know if he will act rationally and because we do not know all the facts. Based on what we do know and assuming that Mr Anderson will act rationally, we believe that it is unlikely that he will bring a claim against the School because:

There is nothing in his statements which indicate that the School was on notice of the alleged misconduct of the two teachers or that there was any negligence on the part of the School in allowing the misconduct to occur or to continue to occur.

The alleged misconduct took place a long time ago and, based on Mr Anderson’s statements, he told his wife and a counsellor about them in 1987, the Police in 1993 or 1994 and the Police again in 1997. Therefore his claim is statute barred unless he can obtain leave from a court to bring the claim out of time. To succeed, he would have to show that he had a good cause and that the School was not prejudiced by the many years that have elapsed.

19. On 22 September 2004, Mr Cujes send a “Confidential Advice to Council (Mr. J. Mills; Mr. P. Meldrum) Regarding Item 2004/2/R”. The advice stated “[h]aving shared with Mr. David Ford the information we received from the Professional Standards Unit of the Anglican Diocese, his comments are as follows”. The advice then copied the letter of advice received from Emil Ford & Co Lawyers on 17 September 2004.

20. On 17 October 2014, Porters Lawyers wrote to Emil Ford stating that their client intended to apply for an extension of time under the Limitation Act. That same day, Nathan Croot, a Senior Associate at Emil Ford Lawyers forwarded the letter from Porters Lawyers to Peter Green, Deputy Head Master and Director of Boarding. Mr Green responded to the email asking “what advice do you suggest now that there is a response from Mr Anderson’s lawyers?”. Mr Cujes was also cc’d in the email. On 20 October 2014, Mr Croot sent an email to Mr Green stating:

“Our view is that the letter is an attempt to coax the School into making an offer to settle the claim. The letter certainly does not contain any substantive reasoning as to why the School may be liable.

The Limitation Act only allows extensions in certain circumstances. Based on the facts as we know them, we do not believe Mr Anderson is entitled to an extension of the limitation period…

If Mr Anderson receives proper advice from Porters and he acts rationally, it is very unlikely that he will apply for an extension or commence proceedings against the School. Unfortunately, there is no guarantee of either of those things and so it is possible that he will commence proceedings”.

21. On 28 April 2015, Mr Roderick West, the successor Headmaster to Mr Wilson-Hogg, was interviewed by the police. On 25 January 2016, Mr West died.

22. The proceedings were instituted on 29 January 2016.

23. On 17 March 2016, s 6A of the Limitation Act came into effect abolishing the time bar in respect of civil proceedings for damages arising out of child sexual assaults. The section was in the following terms:

“6A   No limitation period for child abuse actions

(1)   An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act.

(2)   In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age:

(a)   sexual abuse,

(b)   serious physical abuse,

(c)   any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse).

(3)   To remove doubt, connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age.

(4)   This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise.

(5)   This section extends to the following causes of action:

(a)   a cause of action that arises under the Compensation to Relatives Act 1897,

(b) a cause of action that survives on the death of a person for the benefit of the person’s estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944.

(6)   This section does not limit:

(a)   any inherent jurisdiction, implied jurisdiction or statutory jurisdiction of a court, or

(b)   any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.

Note. For example, 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.”

24. On 16 August 2016, criminal proceedings against Futcher were commenced alleging the commissions of acts of indecency and buggery against the respondent and other persons. Futcher was convicted and sentenced to a total term of imprisonment of 18 years and 4 months.

25. By an Amended Notice of Motion dated 1 August 2018 Trinity sought the following orders:

“1. That the proceedings be permanently stayed pursuant to section 67 of the Civil Procedure Act 2005 NSW and Rule 2.1 of the Uniform Civil Procedure Rules 2005 NSW.

2. In the alternative to 1 above, that paragraphs 5C (including the particulars thereto), 9 and 15, and particular (h) to paragraph 13, of the Amended Statement of Claim be stuck out pursuant to Rule 14.28 and/or rule 2.1 of the Uniform Civil Procedure Rules 2005 (NSW).

3. That the proceedings or the plaintiff’s claim be summarily dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).”

26. As the primary judge explained, the relief was sought on the basis that the delay between the occurrence of the abuse of the respondent and the hearing of the proceedings before the Court created a situation which was manifestly unfair to Trinity, or would otherwise bring the administration of justice into disrepute if the proceedings were allowed to continue.

27. The primary judge dismissed the motion and Trinity has sought leave to appeal from that decision.

The structure of the judgment

28. The balance of the judgment will deal with the issues in the following order:

A   The pleaded case and its particularisation;

B   The legal principles underlying the respondent’s claim;

C   The evidence on the application;

D   The primary judgment;

E   The grounds of appeal;

F   The submissions;

G   Consideration.

A   The pleaded case and its particularisation

29. The Amended Statement of Claim (the Statement of Claim) pleaded that in 1974 Futcher was appointed as a Master at the Preparatory School by the Reverend Sandars, the appointment being endorsed by Mr Wilson-Hogg. It pleads that the respondent was a student at Trinity from 1967 through to and including 1976.

30. Paragraph 5C of the Statement of Claim pleads that by 1975 the applicant knew or ought to have known that Futcher posed a risk to students under his care. The particulars relied upon related to physical and sexual assaults by Futcher on a Peter Green (a pseudonym), a sixth class student in 1975. It was alleged that in 1975, on a number of occasions, Futcher took Peter Green to an empty classroom and caned him three or four times on his exposed buttocks. It was alleged that Peter Green, in company with his mother, complained to the Reverend Sandars about the conduct in late 1975, stating Futcher “made me drop my pants and pull my cheeks apart when he caned me”.

31. In addition, the following allegation is particularised:

“i)   In early 2007, the mother of the plaintiff, Barbara Anderson asked Sandars whether ‘he was aware that Neil Futcher was attacking boys at the school and attacked Rob’ to which he replied ‘yes’.”

32. The allegation of sexual assault was pleaded in the following terms:

“6.   During the years 1974 to 1976 and whilst a student at Trinity Grammar School, the plaintiff was sexually assaulted by Futcher.

PARTICULARS OF SEXUAL ASSAULT

a)   On one occasion in 1974, Futcher transported the plaintiff from Trinity Grammar School to the Trinity Grammar School sports ground in Futcher’s car;

b)   On this occasion whilst transporting the plaintiff, Futcher showed the plaintiff pornographic materials;

c)   On multiple occasions between 1974 and 1976, Futcher took the plaintiff to his residence in Drummoyne;

d)   On these occasions Futcher inserted his penis into the plaintiff’s anus;

e)   On multiple occasions between 1974 and 1976, Futcher transported the plaintiff to various locations in Futcher’s car;

f)   On these occasions Futcher inserted his penis into the plaintiff’s anus, forced the plaintiff to perform oral sex on Futcher, and performed oral sex on the plaintiff;

g)   On multiple occasions between 1974 and 1976, Futcher picked the plaintiff up from Trinity Grammar School in his van;

h)   On these occasions Futcher forced the plaintiff to perform oral sex on Futcher;

i)   From 1974 to 1976, on multiple occasions, Futcher and another Preparatory Staff teacher from Trinity Grammar School, Neville Betteridge, took the plaintiff and other students from Trinity Grammar School camping in Macquarie Fields;

j)   During these camp trips, Futcher would photograph the plaintiff naked, sleep with him in the same tent and allowed the plaintiff access to pornographic materials;

k)   Futcher also sexually assaulted the plaintiff on these trips to Macquarie Fields, by masturbating the plaintiff’s penis and later in time he would take him back to Macquarie Fields alone in his car and insert his penis into the plaintiff’s anus;

l)   From 1974 to 1976, Futcher also took the plaintiff and other students from Trinity Grammar School on multiple day school organised camps, in various other locations such as the Colo River, or Camp Chakola in the Kangaroo Valley; and

m)   During these camps trips, Futcher would photograph the plaintiff naked, sleep with him in the same tent and allowed the plaintiff access to pornographic materials.”

33. The Statement of Claim pleaded that Trinity was liable for these assaults by reason of the fact it owed a non-delegable duty of care to ensure reasonable care was taken for the respondent’s safety (paragraph 8 of the Statement of Claim). Paragraph 12 alleges a breach of that duty. It is in the following terms:

“12.   The defendant by their servants and/or agents breached their duty of care owed to the plaintiff.

PARTICULARS OF THE DEFENDANT’S BREACH OF DUTY

a)   By their employee, servant and/or agent the defendant assaulted the plaintiff;

b)   Failure to devise and maintain a suitable system or procedure so as to ensure its employees, servants and/or agents were suitable for the purpose of being entrusted with the care of children;

c)   Failure to take adequate steps to ensure the suitability of Futcher to act as a teacher and to verify his suitability;

d)   Failure to warn or train its employees, servants and/or agents in the risks and dangers of child abuse;

e)   Allowing Futcher to teach at Trinity Grammar School without taking procedures to ensure that he was not likely to abuse students;

f)   Failure to identify the plaintiff as a victim of child abuse and to locate the plaintiff and offer counselling;

g)   Failure to supervise or adequately supervise the plaintiff;

h)   Failure to supervise or adequately supervise Futcher;

Failure to institute and maintain a system whereby teachers and staff were properly supervised so as to reduce or eliminate the risk of sexual assaults;

i)   Failing to instruct Futcher not to abuse the plaintiff or children from Trinity Grammar School;

j)   Failure to institute and maintain a system of mandatory reporting of child abuse;

k)   Failure to institute and maintain a system of instruction for teachers and staff, specifically aimed at preventing sexual assaults;

l)   Failure to institute and maintain a system whereby teachers were encouraged to and required to report to the defendant concerns about sexual abuse;

m)   Failure to institute a system whereby children who were being subjected to sexual assaults were instructed to report in relation to themselves or others;

n)   Failure to institute and maintain a program to educate children of Trinity Grammar School in relation to their right to be free from sexual abuse and to report any sexual abuse to an appropriate designated person or persons within Trinity Grammar School;

o)   In having the plaintiff as a child at Trinity Grammar School, they represented to the plaintiff, through his parents, that he would be safe from harm whilst in the care of Trinity Grammar School;

p)   In allowing Futcher to have access to the children at Trinity Grammar School, they represented Futcher to the plaintiff, through his parents, as a person who could be trusted to teach, provide pastoral care and religious instruction to the plaintiff and they increased the risk that Futcher would be able to sexually abuse the plaintiff;

q)   They placed the plaintiff in situations where he was in fear that he may be sexually assaulted by Futcher;

r)   Failure to take any action in respect of supervising Futcher or removing Futcher from his teaching position and/or camp supervisor position, following the disclosure by [Green (a pseudonym)] to Sandars in late 1975;

s)   In allowing Futcher to organise, attend and supervise the plaintiff on school organised and /or sanctioned camps, at which he was groomed and/or sexually abused by Futcher during the period 1974-1976; and

t)   These camps were either organised and/or sanctioned by the defendant:

(i)   In 1974, Futcher informed Sandars, that he was organising camps at Macquarie Fields, which involved selected students from Trinity Grammar School;

(ii)   In 1974 Sandars allowed Futcher to organise and attend these camps and took no steps to ensure the safety of the Trinity Grammar School students who were attending;

(iii)   In December 1974, Trinity Grammar School promoted and reported in its Annual Magazine ‘The Triangle’, on the Crusader Camps, camps for ‘sixth class boys’ in the Murrumbidgee Irrigation Area in May and the annual school camp at Chakola in the Kangaroo Valley in August, as ‘valuable and constructive activities’; and

(iv)   In December 1975, Trinity Grammar School promoted in its Annual Magazine ‘The Triangle’ that ‘group vacation camps and class excursions by members of our Preparatory School Staff (which included Futcher) have provided invaluable opportunities for the intellectual, physical and social training of our boys’.”

34. Further particulars were sought of this paragraph, the request and the response were as follows:

“2.   What are the material facts and matters on which it is alleged at paragraph 12 s) of the Amended Statement of Claim that the defendant allowed Futcher to organise, attend and supervise the plaintiff on camps? Please state:

a.   What were the school organised and/or sanctioned camps referred to, in particular:

i.   Where were they held?

The camps were held at Macquarie Fields.

ii.   When were they held?

Between 1974 and 1976.

iii.   What students (by general description) is it alleged attended?

Trinity Grammar students including Wayne Rowley, Craig Wallis and a number of other boys.

iv.   What staff members is it alleged attended?

Neil Futcher and Neville Betteridge.

b.   Is it alleged that those camps were organised or sanctioned by the school?

It is alleged that the camps were sanctioned by the school.

c.   If it is alleged that the camps were organised by the school, please set out all the facts and matters on which the plaintiff relies in alleging that the school organised the relevant camps?

Not applicable.

d.   If it is alleged that the camps were sanctioned by the school, please set out all the facts and matters on which the plaintiff relies in alleging that the school sanctioned the relevant camps.

Please refer to the information provided at paragraph 12(f) of the Amended Statement of Claim.

e.   Please set out all of the facts and matters relied on in support of the allegation that the school allowed Futcher to:

i.   organise

ii.   attend

iii.   supervise the plaintiff at

the relevant camps.

Please refer to the information provided at paragraph 12(f) of the Amended Statement of Claim.

f.   Please provide details of the grooming and/or sexual abuse which it is alleged Futcher perpetrated at the relevant camps, including all the material facts and matters relied on in making the allegation.

Please refer to the information provided at paragraph 6(i), (j) and (k) of the Amended Statement of Claim.

3.   What are the material facts on which the plaintiff relies in alleging at paragraph 12(t)(i) of the Amended Statement of Claim that Futcher informed Rev. Sandars that he was organising camps at Macquarie Fie[l]ds, which involved selected students from Trinity Grammar School? If that ‘informing’ process occurred verbally, please provide full particulars of the conversation, including when and where it took place, and the effect of words exchanged. If it occurred in writing, please provide a copy of the relevant document or documents.

Please refer to the documents produced under subpoena by the Office of Public Prosecutions on 21 August 2017.

On page 610 of the transcript dated 30 August 2016, Futcher states that he spoke to Reverend Sandars about the camps that Futcher organised in 1974 and that Reverend Sandars had allowed him to proceed with organising the camps.

4.   What are the material facts on which it is alleged at paragraph 12(t)(ii) of the Amended Statement of Claim that Rev. Sandars allowed Futcher to organise those camps? If the Rev. Sandars allegedly granted permission verbally, please provide full particulars of the conversation, including when and where it is said to have taken place, and the effect of the words exchanged. If the permission is said to have been given in writing, please provide a copy of the relevant document or documents. If the plaintiff contends that Rev. Sandars provided permission to Futcher by conduct or implication, please say so and outline the circumstances that the plaintiff says gave rise to any such implication.

Please refer to the answer provided at paragraph 3.

5.   In relation to paragraph 12(t)(iii) of the Amended Statement of Claim, does the plaintiff contend that:

a.   he attended Crusader camps;

No.

b.   Neil Futcher attended Crusader Camps;

No.

c.   he attended the Murrumbidgee Irrigation Area;

No.

d.   Neil Futcher attended the Murrumbidgee Irrigation Area;

No.

e.   He was subjected to sexual abuse occurred on any of the camps in the above subparagraphs?

No.”

35. The response was corrected to change the reference to paragraph 12(f) of the Amended Statement of Claim in answers 2(d) and (e) to 12(t).

36. It will be noted that the particulars allege that the Reverend Sandars either authorised or sanctioned the camps where some of the sexual abuse was said to have taken place.

37. The vicarious liability claim was pleaded as follows:

“13.   The defendant is vicariously liable for the acts of Futcher in sexually assaulting the plaintiff (as particularised in paragraph 6 above) and the harm suffered by the plaintiff, whilst they had the care, management and control of the school.

PARTICULARS OF VICARIOUS LIABILITY OF THE DEFENDANT

a)   The defendant conducted Trinity Grammar School so as to provide in addition to academic instruction, care, supervision and protection for the children;

b)   In the circumstances, the responsibilities of the teachers of Trinity Grammar School extended to providing care, protection and supervision at all times;

c)   In the circumstances, this created a teacher-student relationship which was invested with a high degree of power and intimacy;

d)   At the time and in the circumstances when Futcher assaulted and injured the plaintiff, Futcher was employed and/or engaged by them to teach at Trinity Grammar School;

e)   In the circumstances, the use by Futcher of that power and intimacy to inflict sexual abuse on the plaintiff occurred within the course of his employment and thus the defendant is vicariously liable for that conduct;

f)   The assault upon and injury to the plaintiff by Futcher occurred in the course of that engagement or employment;

g)   Alternatively to (f) above, at the time and in the circumstances when he assaulted and injured the plaintiff, Futcher was acting as their agent for the purposes of the pursuit and furtherance of their undertaking, namely, the education of children at Trinity Grammar School and the provision of pastoral instruction and care to the plaintiff; and

h)   Further and in the alternative to (f) and (g), the defendant took no action in respect of supervising Futcher or removing Futcher from his teaching position and/or school camp supervisor position, following the disclosure by [Green (a pseudonym)] in late 1975, and sexual abuse continued on the plaintiff by Futcher post this date, whilst the plaintiff remained a student at Trinity Grammar School. This failure by the defendant provided the occasion for the wrongful acts by Futcher.

14.   At all material times the defendant operated and/or managed Trinity Grammar School through the Principal and teachers and the defendant is vicariously liable for each of the acts and/or omissions of the Principal and teachers which caused injury and harm to the plaintiff. The ‘acts’ are those particularised in paragraph 6 committed by Futcher.”

38. It can be seen that this portion of the claim does not appear to rely on any of the matters particularised in respect to the allegation in paragraph 12, including in particular, the allegations in paragraphs 12(s) and (t). Notwithstanding, the parties treated these allegations as being relevant to each part of the claim.

39. The defence put in issue the various allegations in the Statement of Claim to which I have referred above.

B   The legal principles underlying the respondent’s claim

40. It is unnecessary in considering this question to go beyond the two most recent decisions of the High Court on these issues, State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 (‘Lepore’) and Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 (‘Prince Alfred College’).

41. In Lepore a majority of the Court held that the liability of a school authority did not extend to intentional criminal conduct against a pupil by a teacher employed by the authority. The plaintiff brought an action claiming damages for personal injury suffered whilst a pupil at a school controlled by the State. The plaintiff alleged negligence against the State. However, there were uncontested findings that the State was not negligent in failing to have a sufficient system of supervision of the teacher or failing to supervise him properly. A majority of the Court of Appeal accepted that the State owed a non-delegable duty of care to ensure that pupils are not injured physically by an employed teacher, irrespective of whether it acted negligently or intentionally.

42. Gleeson CJ accepted at [2] that the legal responsibility of the school authority included a duty to take reasonable care for the safety of pupils and that there may be cases where the sexual abuse is related to a failure to take such care, giving as examples negligence in the employment of a person or inadequate supervision of staff. However, he concluded at [38]-[39] that there was “no reason, either in principle or in authority, to treat the existence of a non-delegable duty as having the consequences held by the New South Wales Court of Appeal”.

43. Gaudron J in reaching a similar conclusion emphasised at [105] that “to describe the duty of a school authority as non-delegable is not to identify a duty that extends beyond taking reasonable care to avoid a foreseeable risk of injury”. Gummow and Hayne JJ reached a similar conclusion at [265]-[270], as did Kirby J at [291].

44. It follows that for the respondent to succeed on the basis of a non-delegable duty, it will be necessary for him to show that Trinity breached its duty to take reasonable care for his safety by, for example, not taking reasonable care in employing Futcher or supervising his activities. In recognition of this fact, the respondent has particularised a large number of matters in support of the allegation that Trinity failed to take reasonable care for the safety of its students, including negligence in the engagement of Futcher, a failure to supervise him and allowing Futcher to organise camps without taking steps to ensure the safety of the pupils at that time. Needless to say these matters involve a consideration of the manner in which Trinity operated at the time.

45. In Prince Alfred College the High Court (French CJ, Kiefel, Bell, Keane and Nettle JJ) after extensive consideration of the authorities dealing with the vicarious liability of employers in cases of this nature, laid down the following principles:

“[81]   Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the ‘occasion’ for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.

…   

[84]   In the present case, the appropriate enquiry is whether Bain's role as housemaster placed him in a position of power and intimacy vis-à-vis the respondent, such that Bain's apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment. The relevant approach requires a careful examination of the role that the PAC actually assigned to housemasters and the position in which Bain was thereby placed vis-à-vis the respondent and the other children.”

46. It should be noted that those passages emphasised the necessity of a careful examination of the role Prince Alfred College actually assigned to housemasters. The importance of the factual inquiry was also emphasised by Gageler and Gordon JJ at [125]-[126].

47. Further, although Gageler and Gordon JJ stated at [130]-[131] that applications of the approach approved by the plurality “will develop case by case”, this application should be considered on the basis that what was said by the plurality in the paragraphs cited is the approach to be taken in determining the scope of the inquiry Trinity will be required to undertake in seeking to defend the claim and its consequent ability or inability to do so.

C   The evidence on the application

(a)   The respondent’s statements

48. Two statements of the respondent are in evidence. The first, the witness statement made to the police on 19 May 2015, and the second, a statement made in these proceedings on 26 March 2018.

49. In the first of these statements, the respondent stated that he refreshed his memory from earlier statements made to the police on 11 April 1997 and 22 August 1997. Neither of these statements appears to be in evidence.

50. The respondent stated that the assaults occurred over a period of four years when he was aged between 11 and 15 years.

51. In his statement of 19 May 2015, he said that when he was in Years 5 and 6 at Trinity in 1974 to 1975, he was friends with a student called Wayne Rowley who was in Year 5 and had Neil Futcher as his teacher. He stated that his Year 5 teacher was Norman Duffy but he had Futcher as his rugby coach and cricket coach.

52. The respondent stated that Futcher would drive him on some occasions in his “rusty bronze coloured golf car to the sporting ovals at Bressington Oval in Homebush”. He said that “there was never any sexual assault that occurred on these trips to and from the sporting grounds” but Futcher would have pornography in his car that he would show him. The respondent stated that he remembered getting an erection when he was looking at some of the material and Futcher would lean over and touch him on the outside of his shorts on his penis and would say “[y]ou like that porn do you” or “[a]re you enjoying that”.

53. The respondent referred to the fact that in his previous statement of 11 April 1997, he mentioned being taken to a camp with Rowley and other boys. He stated that they were taken to the camp by Futcher and Betteridge. He said that the camp area was at Macquarie Fields. He referred to the fact that in his earlier statement he made mention of stripping off his clothing and jumping into the river along with the rest of the children. He stated that he remembered doing this because the children were told by Futcher “it was normal behaviour”. He also referred to Futcher walking around and taking photographs of him and other boys.

54. The respondent stated that he could not remember how he came to play squash with Futcher, but remembered Futcher making an offer to take him to squash courts and teach him to play. He stated that he remembered the squash courts were at Gladesville.

55. The respondent stated that in his statement of 11 April 1997 he made mention of driving to a block of units under the Gladesville Bridge where Futcher and his mother used to reside. He stated that he knew Futcher’s mother resided there because Futcher told him on the way to his house from the squash courts that he lived with his mother. He stated, however, that every time he was taken to Futcher’s house he never saw the mother. He stated that he was taken to Futcher’s house “about half a dozen times between 1974 to 1975”. He said that after the first assault at Futcher’s house, Futcher drove him home and just before he got there said to him “[i]f you tell anyone what happened today I will kill you and all of your brothers and sisters. Even if you do try and tell anyone no one is going to believe you”. He stated that he remembered saying to Futcher “[i]t’s alright I won’t tell anybody”.

56. The respondent referred to the fact that in his first statement he mentioned going to a house which was owned by a Ross Horner. He described the house which he stated to be in fact a flat. He said that when he and Futcher got into the flat, Futcher had anal penetration with him but he could not remember where in the flat it occurred. He said that after this he was never again taken to Futcher’s unit in Drummoyne.

57. The respondent said that he remembered that during 1975 to 1976 Futcher would “intercept” him on his way to school on some days, either when he was walking to Epping train station or at Epping train station. He said that he remembered on some occasions, Futcher would be waiting near the Epping newsagency for him to arrive. The respondent stated that Futcher had changed cars from a Golf to “an orange/red escort panel van with bubble windows”. He stated that he and Futcher would meet together and spend the whole day together when he would drive him to Lake Macquarie. He said that he was taken to the Macquarie Fields camp area about a dozen times. He stated that between the years 1976 to 1977, Futcher was driving the Escort panel van and began to take him to places such as Galston Gorge. He said that they would pull up at bays to the side of the road used for picnic areas and Futcher used to pull into one of the bays, instruct him to get into the back of the Escort and take his clothes off, where Futcher would have penile-anal intercourse with him. He stated that he went to this location with Futcher “about 30 times”. He said that “he hated the feeling” of what Futcher was doing to him.

58. The respondent stated that in 1976 he left Trinity and for the first few months he did not see Futcher but began to see him about four months after he moved to Barker College. The respondent gave evidence of further sexual assaults on him when he was a student at Barker, but they are not relevant for present purposes.

59. In his statement in these proceedings, the respondent states that in 1973 he was in Year 5 at Trinity and was close friends with another student, Wayne Rowley, who had also made allegations of abuse against Futcher.

60. The respondent said that he was “now aware from Futcher’s criminal proceedings that Futcher sought permission” from the Reverend Sandars “to organise camps at Macquarie Fields for students who performed well in Futchers’ class”. He said that Futcher and Betteridge were “the teachers who supervised and ran these camps”. He stated that each student in Futcher’s class was allowed to bring a friend. He said that Rowley asked him to attend the camp with him.

61. The respondent stated that he believed that his mother dropped him off at the meeting point which was at the school as with all other camps he had attended whilst at the school. He stated that from there, they were taken to the camp at Macquarie Fields. He said that his recollection was that the first camp was about two to three days long.

62. He stated that at the camp all the students, including himself, were “encouraged to swim naked” and he remembered Futcher taking pictures of other students and himself while they were naked. He stated that they “all slept together in tents” and that during the camp Futcher entered his tent on occasion and put his hands down his shorts and fondled his genitals. He stated that at the camp Futcher also showed the other students and himself pornographic material and he made fun of and then encouraged them when he saw them becoming physically aroused by the material.

63. He said that he recalled going to two other camps at Macquarie Fields with other students and Futcher and that he “was abused in a similar manner”.

64. The respondent stated that in 1974 when he was a Year 6 student, Futcher began to interact with his family. He stated that Futcher also started to take him to play squash, usually at Gladesville Squash Courts. He said that after the fourth occasion, Futcher took him back to his home for a shower and that whilst he was showering, Futcher joined him in the shower and stood behind him and anally penetrated him with his penis. He stated that on the way home, Futcher pulled over and said words to the effect, “If you tell anyone no one will believe you. I will kill your brothers and sisters and you’re adopted anyway so they won’t stand by you”.

65. The respondent said that Futcher anally penetrated him in the shower after playing squash on a number of occasions. He stated that Futcher continued to abuse him further after that, the abuse largely taking place in Futcher’s flat in Gladesville.

66. The respondent said that he also attended “other camps at places like Camp Chakola and the Colo River” usually in the school holidays. He stated that he recalled Futcher being one of the supervising teachers during these camps and he remembered being abused on one occasion at the Colo River camp. He stated that on that occasion, Futcher entered his tent and put his hands down his shorts and fondled his penis and genitals.

67. The respondent stated that when he started high school, he was living at Carlingford and Futcher intercepted him on his way to and from school. He stated that at the beginning of Year 7 when he was 12 years old, Futcher took him to a brothel. He said that the woman at the brothel asked him how old he was and he told her that he was 12. He said that he then had sex with her.

68. The respondent then stated that the sexual abuse continued whilst he was at Barker College.

(b)   Barbara Mary Anderson

69. Barbara Mary Anderson (Ms Anderson) is the respondent’s mother. She made a statement to the police on 13 May 2015. She stated that the respondent started Kindergarten at the Preparatory School when he was 4 years old and stayed there until the end of Year 6. She said that he then went to the senior school staying there until the end of Year 8 from where he went to Barker College.

70. Ms Anderson said that she got to know the Principal of the Junior School, the Reverend Sandars very well. She said that she was on the Parents & Citizens Committee and the Reverend Sander’s wife was the Vice-President. She stated that Mrs Sandars ran everything at the school.

71. Ms Anderson said that she recalled that the respondent and another boy were taken out by the Year 6 teacher Mr Simms who took them shopping at Ashfield and after that to his home for afternoon tea. She said that the respondent told her about it but never said anything bad had happened. Mr Simms apparently had a nickname, “Ozzie ostrich”. He apparently became upset when he was called that in class and wrote a letter to the respondent which Ms Anderson said was along the lines, “I am very sad to think you would treat me like this, I thought you were my friend, I didn’t expect you to be cruel to me like the other boys”. Ms Anderson said that on seeing it she became concerned that Mr Simms was far too friendly and familiar with the respondent. She said she spoke to the Reverend Sandars about it and gave him the letter. He said that he would investigate and from memory he told her that he had investigated, there was nothing wrong and Mr Simms was very embarrassed and sorry he had written the letter.

72. Ms Anderson stated that she did not recall Futcher being one of the respondent’s teachers. She stated that during the period that the respondent was at the Preparatory School, “he was just a distant teacher”.

73. Ms Anderson stated that in Years 5 and 6 the respondent would go to school camps. She thought it was twice a year. She stated that he used to go to Chakola in the Kangaroo Valley and possibly Colo. She said that she could not recall which teachers took the respondent on camps. She stated that he seemed to enjoy them and always wanted to go on them.

74. She stated that after Year 6 the respondent went to the senior school until the end of Year 8. She stated effectively that the reason was her dissatisfaction with certain aspects of the school under the new Headmaster, Mr West. However, the matters which she raised were not relevant in any way to the facts of the present proceedings.

75. Ms Anderson stated that she spoke to the Reverend Sandars in early 2007 when she invited him and his wife to her house in Bowral for afternoon tea. She said that she said to Sandars “by the way did you know that Neil Futcher was attacking boys at the school and attacked Rob?”. She said that the Reverend Sandars replied “yes” and then “he just shut his mouth tight, like he didn’t want to say anything else”. She said that he did not say another word about it and she did not ask any further as she could see he was not going to talk about it. She said she was “just horrified”. She said that she had not heard or spoken to him since that day.

76. Ms Anderson made a further statement on 20 March 2018 for the purpose of the present proceedings. She stated that she recalled Futcher was a teacher at the school when the respondent was a student there. She repeated that she recalled that he used to go to camps organised by the school. She stated that she remembered that the camps were mentioned in the weekly school newsletters. She said that she recalled the respondent talking about the camps with her. She remembered that there was a camp which took place at Chakola in the Kangaroo Valley and another one that was held in the Colo River area.

69. Ms Anderson said that she recalled dropping the respondent off at the school for him to attend the camps. She said that on some occasions, he would stay at the school after class and then be taken to a camp. She said that he and the rest of the class would gather at the school and she recalled there being a school bus with the school’s logo that would take them. She stated that she recalled that on all these camps the students were supervised by a group of teachers at the school.

70. Ms Anderson stated that any parent who wanted to send their child to camps had to sign a permission form on the school letterhead. She said that she and her husband would never have let the respondent go on any camp without filling out a permission form. She said that her understanding was that any camp the respondent attended was under the auspices of the school. She said that she would not have let the respondent attend a camp where he was transported in a car and not a bus and that if she had known that there would only be one teacher supervising at camp, she would not have let the respondent attend.

(c)   Roderick West

79. As I indicated above, Mr West succeeded Mr Wilson-Hogg as Headmaster of Trinity. He made a statement to the police on 28 April 2015, some eight months prior to his death.

80. In his statement, Mr West said that he was appointed as Headmaster of Trinity in 1974, taking up the role in January 1975. He said that prior thereto he was the Senior Classics Master at The King’s School.

81. Mr West stated that in 1975 the Master of the Preparatory School was the Reverend Sandars who had been at the school since 1964.

82. He stated that Futcher was appointed in 1973 as a Master at the Preparatory School. He said that he was appointed by the Reverend Sandars and that Mr Wilson-Hogg endorsed the appointment.

83. Mr West stated that the policy in place at the time he became Headmaster was that boys from Transition to Year 2 were taught by women and boys from Years 3 to 6 were taught by men. He said that in those days the teachers taught all subjects.

84. Mr West stated that he “knew that some members of the Preparatory School staff arranged camps in the school holidays with the support of parents and the boys”. He said that he did not know how the camps were advertised. He said that in the 1970s, during the time of Futcher’s employment, he was not aware of Futcher specifically taking Trinity boys away on school camps at weekends or during school holidays, although he “did know that some camps at Colo River were arranged”. He stated that he was not aware who arranged the camps.

85. Mr West said that at the time the respondent left Trinity, there was nothing said to him or brought to his attention of Mr Anderson having been subjected to any sexual or physical abuse. He said that he had no memory of having ever socialised with Futcher. However, his wife and he may have had him over for dinner at their home as their guest. He said that he had no knowledge of Futcher sexually or physically abusing Trinity students or other boys.

(d)   Statements of witnesses obtained as a result of the investigations by the solicitors for Trinity

86. Mr Patrick Gordon Thompson of Thompson Cooper Lawyers Pty Ltd (Mr Thompson) was instructed to act for Trinity in February 2016. He stated that he formed the view that all available Preparatory School staff members should be located and interviewed about the subject matter of the allegations and whether they had any contemporaneous knowledge about offending behaviour on the part of Futcher. He stated that his review of the staff lists confirmed a large number of individuals worked at the Preparatory School across the relevant period. As a result, he instructed an investigator, Mr Allen Fitzsimons of Crawford and Company (Australia) Pty Ltd (the investigator), to carry out certain investigations. The investigator’s first report was dated 6 June 2016.

87. In his first report, the investigator stated that he had identified a significant number of staff employed at Trinity during the 1970s, having focused his inquiries to date on male staff who were likely to be involved in camps during the 1970s. He recorded, consistent with the evidence of Mr West, that female teachers were restricted to teaching Preschool, Kindergarten and Years 1 and 2, whilst male teachers taught Years 3 to 6.

88. He stated that the two groups, infants and primary students, went on separate camps.

89. The report stated that the investigator only became aware of one Munjon newsletter dated January 1979, but found an advertisement for Munjon weekend camps at Colo River in a Trinity Preparatory School magazine in 1977 (see [238] below).

90. The report stated that the investigator had received conflicting details about the number of classes in each grade. The report stated that the school class lists for Years 5 and 6 indicated three classes for each of those grades. It stated that in addition to classroom teachers, there was a librarian, a drama teacher, a music teacher, a PE teacher, a religion teacher, administration staff and a bus driver. The report stated that from the investigations, it was understood that all grades from Kindergarten to Year 6 went on an annual school camp during the school term, accompanied by their respective class teachers. It stated that these camps were midweek for Years 2 to 6.

91. In summarising the outcome of the report, it was stated that the former staff members spoken to recalled Futcher teaching in Year 5 or Year 6 as a classroom teacher and as a rugby/cricket coach during the period he was at Trinity.

92. The report referred to a letter from the Reverend Sandars to Mr West dated 10 August 1977, in which reference was made to Futcher’s resignation being “timely” and that his departure from the school “will help remove a degree of tension and discord which has been engendered by him amongst the staff and certain groups of parents during the past two years”. In that context, the report referred to a letter from Futcher to the Reverend Sandars dated 30 June 1977, which related to a complaint about Futcher instructing pupils to be physically aggressive during a rugby match. Notwithstanding, the investigator found no evidence of any other complaints having been raised up to Futcher’s departure at the end of 1977. This is consistent with the statements from former teachers to which I refer below.

93. The letter in question is in evidence and its content makes it clear that the complaint concerned the fact that Futcher had apparently instructed the Trinity team to play aggressively. Futcher’s response was effectively that the instructions he gave were within the rules of the game, his justification being that “the boys’ only chance in the game was to out-tough them [the opposition] as they had neither the skill nor brainpower to do otherwise”.

94. Whatever the merits of the complaint, it plainly had nothing to do with sexual or physical assaults on students.

95. The report also stated that a statement provided to police by a former student John Stuart, recalled Futcher calling his home after he left Trinity, asking his mother whether he would like to go on a “Trinity Grammar school camp”. He stated that Mr Stuart recalled Betteridge picking him up from his home and taking him to the Colo River camp.

96. In the course of his investigation, the investigator obtained statements from a number of former teachers, details of which are summarised below:

(i)   Mr Garry Connors

97. Mr Connors provided a signed statement dated 2 June 2016. He stated that he was employed at Trinity for 41 years from 1973 to 2014. He stated that for the first seven or eight years of his employment, he taught Year 3.

98. Mr Connors stated that from his recollection there were only two Year 5 and Year 6 classes in each school calendar year in Trinity during the early 1970s. He recalled, although he could not be certain, that the teachers who took Years 5 and 6 were Norm Duffy, Betteridge, Futcher and Brian Simms. He stated that Norm Duffy passed away in March 2016.

99. Mr Connors said that he had no knowledge or understanding of any sexual abuse at the time that Futcher was employed at Trinity. He stated that he did not teach with him and had very little to do with him, although he stated the students called him “Futcher the Butcher” for his use of the cane.

100. Mr Connors stated that for his first two or three years at Trinity he went on school camps. He stated that he recalled one was at “Chakola in the Kangaroo Valley and the other was to Mile (sic) Lakes/Barrington Tops area”. He thought it was a Jim Jockell that organised the camp to Chakola. He stated that he did not recall Futcher on any of the camps he went on.

101. Mr Connors stated that at the time he “didn’t give much thought to whether the school had an interest/involvement in the camps that were held during the school vacation”. As far as he was concerned, “Trinity had given approval as letters were sent home with students informing their parents about the camps and therefore the camps were done with the knowledge of Trinity”. Mr Connors stated that he was “of the understanding that it was common for teaching staff to take students on camps during school holidays”. However, he stated that he did not recall these camps “being part of the Trinity extra school curriculum” and believed “that they were held during the school holidays as a private arrangement between the teaching staff that were organising them and parents that wanted their child to attend”.

102. Mr Connors said that he did not recall camps called Munjon or any camp to the Colo River, although immediately after making that statement he said that “[n]ow that I think of it I recall some camps at the Colo River at the time”. He said “it rings a bell” but that he never went to camps on the Colo River.

103. He stated that his understanding was that “letters would have gone home with the boys to the parents advertising the camp”, informing them of an activity for the school holidays and inviting parents to enrol students in the camp.

104. Mr Connors had previously made a police statement on 2 June 2015. He referred again to the Chakola camp and stated that he did not remember Futcher ever going on a camp that he attended. He said that he thought there may have been 12 to 15 boys that attended the camps and that they may have travelled together on a bus but he could not be sure.

105. Mr Connors stated that during his teaching at the Preparatory School, most sporting activities took place at Bressington Park at Homebush where the Preparatory School leased the ovals from the Council. He stated that the students were “normally bus[s]ed to the school grounds”. He stated that “staff were expected to travel on the buses to supervise the students”. He stated that he never drove his own car or had students travel with him in his own car.

106. Mr Connors said in the police statement that he knew of nothing of Futcher’s activities outside of the school and did not know of him playing squash or ever taking any students to play squash. He did say that he knew that in 1976 “Futcher owned a VW Golf” which he thought was “chocolate brown in colour”.

107. Mr Connors said that he had no memory of why Futcher left the school or where he was going. He said that he cannot recall the Reverend Sandars saying anything to him about why he was leaving when he did. He said that the teachers who taught alongside Futcher in the upper primary, as far as he could recall, were Norm Duffy, Brian Simms, Dennis Pogson and Betteridge.

108. Mr Connors stated that while teaching at Trinity he was not aware of any complaints or information involving incidents of sexual assault or abuse perpetrated by Futcher upon any students.

109. Mr Connors also swore an affidavit for the purpose of these proceedings. He elaborated to some extent on the camps which he attended. He stated that he recalled Trinity organising overnight excursions, for example, to Jenolan Caves. He stated that those camps were in school term and part of the Trinity curriculum. He stated that he recalled that James Jockell was an organiser.

110. He stated that “[t]here were other camping trips which were not organised by the School”. He recalled that in his first or second year teaching at Trinity, he was asked by John Christie and Richard Johnson to go on a camping trip to Barrington Tops with Year 3 students. He stated that the trip was not part of the school curriculum and was not conducted in term time. He stated that it was conducted in school holidays with the consent of the boys’ parents. He stated that the camps he recalled going to at Chakola were also at holiday times. He stated that he could not remember how the children arrived at the camp.

111. Mr Connors said in his affidavit that he had “no memory of the name ‘Munjon’” and that he could not remember Futcher at any of the holiday camps he attended.

112. He stated that “some holiday camps occurred at the Colo River” but his recollection was that they were on weekends. He recalled that one such camp was organised by Betteridge. He did not attend that camp. He stated that his recollection was that “any camp to the Colo River was with children from Grades 5 and 6”.

113. Mr Connors stated that the Preparatory School was “entirely run by the Reverend Sandars”. He stated that he also operated as the Preparatory School Chaplain and took divinity classes. He described the Reverend Sandars as “articulate, personable” and said that “children looked up to him”. He stated that the Reverend Sandars would frown on staff developing friendships with parents.

114. Mr Connors stated that there were three aspects of sport at Preparatory School. He said that there was physical education, one class a week, the classes being on school grounds. He stated that one day each week after lunch there was a sports afternoon at Bressington Oval or Strathfield Park, and one day each week there was after school team training at Bressington Oval or Strathfield Park. He stated that he recalled that children would walk to Strathfield Park which was within 10 minutes of the school or go by bus to Bressington Oval. He stated that “[i]t was not normal for teachers to drive children to the ovals”, stating that “[t]he children were always bussed back from Bressington Oval or walked back from Strathfield Park”. He stated that he could not recall teachers driving children to Strathfield Park or Bressington Oval but it was “possible” that they did. He said that he “did not consider it odd or a danger to children if a teacher drove them to a sports afternoon or to after school team training”. He stated that he “thought the teacher was doing a good deed” and that “more often than not there would be two or three boys in the car”.

(ii)   Mr James Jockell

115. An unsigned statement was prepared in discussions between Mr Jockell and the investigator.

116. Mr Jockell said that he was employed at Trinity from about 1975 to 1982. He stated that he recalled Futcher as a classroom teacher and that he was there until the early 1980s.

117. He stated that he had “no knowledge of any abuse or inappropriate behaviour” by Futcher.

118. Mr Jockell stated that Trinity was divided into “two different buildings”, he was in one and Futcher was in the other block. He stated that the older children were in the block where Futcher taught.

119. Mr Jockell stated that he never went on any school camps with Futcher. He recalled that there were some parents who were keen to pay for their kids to go away on camps during the school vacation periods. He stated that this was “lucrative” for teachers who wanted to take children on vacation. He stated that “[i]t was common in many schools at the time” for teaching staff to take children on a camp during the school holidays. Mr Jockell said that to his knowledge, it was “a private thing - a private arrangement between the teacher and the parents” and that “the school wasn’t involved”. In his unsigned statement he said “I would categorically dispute the allegation that Trinity was in any way involved in organising camps for students during school holidays”. He stated that Trinity never publicised any of these camps.

120. Mr Jockell stated that he was not familiar with the term Munjon. He said that he had never heard of any Munjon camps.

121. Mr Jockell told the investigator that he agreed to return his statement signed, but it was not returned.

122. In May 2017, he emailed Mr Thompson stating that he was only prepared to provide information on the basis that the conversation not be recorded or taped in any way and that a guarantee was given that his name would not be introduced into any aspect of the proceedings. Mr Thompson sent a draft affidavit to him based on the information obtained by the investigator. However, Mr Thompson was informed on 8 July 2017 that Mr Jockell had suffered a stroke while travelling in Canada and was unable to respond.

(iii)   Mr Wesley Tritter

123. Mr Tritter signed a statement and also swore an affidavit. In his statement dated 13 June 2016, he stated that he was employed at Trinity from February 1972 to May 1977, teaching Grade 4 and drama. He stated that he left Trinity to return to Canada.

124. Mr Tritter stated that while teaching at Trinity he recalled that Grades 5 and 6 were on another level of the building to where he was teaching Grade 4. He said that he could not recall exactly who taught Grades 5 and 6 but Norm Duffy and a Mr Landers came to mind.

125. Mr Tritter said that he recalled Futcher as another teacher at Trinity. He stated that sometime in 2015, he heard allegations against Futcher and another teacher, Betteridge, from two of his colleagues from Trinity that kept in touch with him, Denise McEwen and Christine Brown.

126. Mr Tritter stated that his impression and recollection of Futcher was that “he was very loud, crude and aggressive” and “did far too much caning of the boys”. However, he never imagined that Futcher was sexually abusing boys and no one ever mentioned anything like this to him. He stated that he never recalled speaking to the Reverend Sandars about the extent to which Futcher caned the students.

127. Mr Tritter said that he did not coach the students for sport. He stated, however, that he recalled going on a camp to a place called Chakola in August during his first year at Trinity. He said that he did not recall Futcher being on that camp, although he recalled Garry Connor and Brian Simms being there.

128. Mr Tritter said that there was “a bus load of kids” and he recalled that Trinity had its own bus. He stated that on arrival back at Trinity, “the parents were there to greet the boys as they got off the bus”.

129. He said that he thought a mix of grades went on the camps. He stated that the school camps were held in August each year during the school holidays. Mr Tritter said that he had no recollection of camps called Munjon but only knew of the Chakola camps, which he understood to be “sponsored by or organised by Trinity”.

130. In his affidavit, he added that only Trinity students attended the camps at Chakola while he was there and that Chakola was an organised campground and the students stayed in tents. He said that he did not attend any school camps held at any other locations.

(iv)   Mr James Southward

131. The investigator took a draft statement of Mr Southward following a telephone conversation. However, Mr Southward declined to co-operate further because of his health problems. Mr Thompson deposed that Mr Southward sent him a letter from his cardiologist to his general practitioner stating that it would be best if Mr Southward avoided “undue psychological stress”.

132. However, in his draft statement Mr Southward said that he was employed at Trinity from 1969 to when he retired in 2007, initially as a piano teacher in the Senior School and then as a music teacher in the Preparatory School from 1970 until his retirement.

133. Mr Southward said that he was initially contacted by police about Futcher, but he told police he did not want to give a statement as he had nothing of relevance to say about him. He also said that he had heart problems which was why he retired in 2007 and that he did not want to get involved in anything that might be stressful.

431. Having regard to these issues, it is necessary to re-exercise the discretion.

(d)   Should the discretion be re-exercised?

443. One difficulty in considering this issue is that it is by no means clear how the respondent proposes to present his case. However, as I have indicated (at [409] above) senior counsel for the respondent accepted that it was necessary in considering whether a stay is to be granted to focus on the particulars to the Statement of Claim.

444. It is thus necessary to consider whether the bringing of the claim as pleaded and particularised is oppressive to Trinity in the sense to which I have referred.

445. Senior counsel for Trinity correctly stated that the assaults pleaded fell into four categories. None of them are admitted in the amended defence although the Court was informed that Trinity admitted that the assaults in respect of which Futcher was charged and convicted took place. The charges related to assaults in the Drummoyne unit in 1975 and other assaults which took place after the pleaded period. As I have pointed out, in 1975 the respondent was no longer a student at the Preparatory School.

446. It should be assumed for the purpose of the application that the respondent is in a position to produce evidence to support the case pleaded and particularised. The question is whether, in light of the matters raised, Trinity can meaningfully deal with the allegations, or whether the proceedings are unjustifiably oppressive to Trinity, or whether, having regard to the position of Trinity, the continuation of the proceedings will bring the administration of justice into disrepute.

447. Although the primary judgment and the submissions on behalf of the respondent focus to a considerable extent on the deficiencies in Trinity’s investigations and the possibility of further material emerging, it is important first to consider whether, on the material presently available, Trinity is in a position to meaningfully contest the claim. It is necessary to do so with reference to the specific allegations of assault pleaded, the causes of action relied upon and the particulars of the breach of duty given in respect of each assault.

(i)   Liability for breach of non-delegable duty in respect of assaults other than those which occurred at the camps

448. The first allegation of sexual assault pleaded was a single occurrence in 1974 where it is alleged that Futcher, whilst transporting the respondent from the Preparatory School to the school’s sportsground, showed the respondent pornographic materials (Statement of Claim paragraph 6(a) and (b)).

449. Liability for this assault would seem more likely to arise from breach of the non-delegable duty rather than as a result of vicarious liability. The respondent first asserted that by “late 1975, if not earlier”, Trinity knew or ought to have known that Futcher posed a risk to students. It is difficult to see what relevance this has to the 1974 allegations. However, the matters said to give rise to that knowledge were a complaint to the Reverend Sandars in 1975 and an admission by him in 2007.

450. The complaint was said to have been made to the Reverend Sandars by Peter Green in company with his mother. The Reverend Sandars is unavailable to say whether it occurred and if it did what steps he took in relation to it. None of the teachers had any recollection of it. Mr West, who is now deceased and who was Headmaster of Trinity at the time the alleged complaint was made, stated that he had “no knowledge of Neil Futcher sexually or physically abusing TGS [Trinity] students or other boys”. Other teachers at Trinity at the time stated that they knew nothing of the allegations of sexual abuse by Futcher – see Mr Connors at [108] above, Mr Jockell at [117] above, Mr Tritter at [126] above, Ms Diamond at [142] above, Ms Ballard at [156] above, Ms Brown at [165], Mr Scott [181] above, Mr Simms at [196] above, Mr Perini at [208] above and Mr Rasmussen at [216] above. It may be that the Reverend Sandars did not mention the complaint to anyone else. However, the only person who could deal with it and the very important question of the knowledge Trinity had of the danger posed by Futcher at or about the relevant time, was the Reverend Sandars.

451. The second matter said to give rise to the knowledge of Futcher’s conduct at the relevant time arose from the conversation between the Reverend Sandars and Ms Anderson which was said to have taken place in early 2007 (see [75] above). Because of the death of the Reverend Sandars, Trinity is not in a position to deal with that statement (to the extent that it would be admissible against Trinity) including whether it occurred, whether the Reverend Sandars was referring to sexual assaults and when did he acquire the knowledge which enabled him to give an affirmative answer to the question of whether he knew that “Futcher was attacking boys at the school and attacked Rob”.

452. As I have indicated, senior counsel for Trinity contended that the Reverend Sandars ran the school as a “one-man band”. The Preparatory School was on a different campus to the Senior School and for that matter, within the Preparatory School, pupils from Reception to Year 2 were separated from the later years. The evidence of the teachers demonstrated that the Reverend Sandars had effective operational control of the school – see Mr Connors at [113] above, Mr Southward at [137] and [138] above, Ms Diamond at [144], [146] and [149] above and Mr Simms [194] above. Although some of these teachers were interviewed by Mr Wilson-Hogg after the Reverend Sandars had offered them a position, the teachers concerned described that interview as a formality.

453. It was suggested by the respondent that there was material which showed the Reverend Sandars did not have “complete and absolute control” over the school as he was subject to the direction of Mr Wilson-Hogg and the Bishop. It was also implicit that the Reverend Sandars did not have such control in the criticism by the primary judge that the “formal structure” of Trinity had “not been adequately explained” (see [317] and [319] above), his reference to a letter of 9 September 2004 that Trinity was “under the control of the Synod”, and his criticism of Trinity in failing to seek material from the Archdiocese or members of the school council.

454. The letter of 9 September 2004 to which the primary judge referred is a letter from the Anglican Church Diocese of Sydney to the Headmaster of Trinity stating that the Diocese had “established a Care & Assistance scheme” to enable matters such as the respondent’s complaint “to be settled on a non-litigated basis”. It said that it had not up to that stage “considered the possibility of including the claims which relate to schools under the control of Synod”. It requested that the Headmaster “bring to the attention of Council the possibility of the scheme being used by Trinity Grammar School with appropriate contributions from the funds of the school”. It was written in the context of the Diocese having been notified of the respondent’s claim that he was “sexually abused by former teachers, Mr Neil Futcher and Mr Neville Betteridge”. There is nothing to suggest that the Diocese had any other notification of that claim or had any involvement in the operation of the school. Further, there is nothing to suggest that the Diocese had anything further to do with the claim but to forward to the Headmaster the letter from the respondent’s solicitors (Hannigans) of 7 December 2004.

455. Further, there is nothing to suggest that the school council had any involvement in the matter. Mr Thompson swore that he obtained “all available documentary material from Trinity”. The documents produced did not include school council consideration of the issue. Further, Mr Dungan set out the steps he took on receipt of a complaint or a claim including one without insurance. There is nothing in the material to show that the school council was made aware of the matter when the complaint was made. Further, irrespective of the structure of Trinity, there is nothing to suggest that in 1974 or the surrounding years, either the Archdiocese or the school council had any operational involvement in the Preparatory School.

456. The respondent, in support of the proposition that the Reverend Sandars was subject to the directions of Mr Wilson-Hogg and the Bishop in the period in question, relied on a number of matters from Mr Wilson-Hogg’s Headmaster’s file. I have summarised these with reference to the relevant documentation at [340]-[401] above.

457. It does not seem to me that a determination of who would conduct weddings at the School Chapel, although no doubt important to those involved, supports an inference that Mr Wilson-Hogg or the Bishop oversaw the Reverend Sandars in his operation of the Preparatory School. Nor do I think a request that the Reverend Sandars ensure boys take home letters to their parents concerning the Karmel Report [1] supports the proposition. The request to arrange follow-up meetings with senior and junior school staff showed co-operation not oversight. The same may be said concerning the request that the Reverend Sandars contact the librarian to discuss how best for both schools the librarian’s time could be used (see at [283] above).

     1. Interim Committee for the Australian Schools Commission, Schools in Australia, Report (1973).

458. Perhaps the most significant matter which suggests that there was oversight by Mr Wilson-Hogg was his rejection of the Reverend Sandars’ proposal for the timing of testing of fourth and sixth class students (at [284] above). However, this was an isolated incident contained in files spanning over a number of years and does not suggest an ongoing operational supervision of the Reverend Sandars’ activities.

459. In those circumstances, the ability to deal with the alleged breach of non-delegable duty in respect of the first allegation of sexual assault is substantially, if not completely undermined, by the absence of the Reverend Sandars. That can be shown by the examination of the particulars of breach of duty. To the extent that they do not depend on the knowledge of the Reverend Sandars with which I have already dealt, they allege (excluding the allegations concerning camps) a failure to put in systems and procedures designed to protect students from abuse. In the absence of any records from the time to show the existence or non-existence of such procedures, the absence of the Reverend Sandars means that Trinity is unable to consider one way or the other what, if any, protections were in place and why at the time they were considered adequate.

460. No assistance can be obtained from the teachers. To the extent that the statements and affidavits of the teachers dealt with transportation to and from sporting events, their evidence is vague and unhelpful. Mr Connors stated that students were “normally” bussed to sport and “staff were expected to travel in buses to supervise the students” (see [105]-[114] above). He stated that if any particular teacher drove them, he “did not consider it odd”. Ms Diamond recalled the “little funny looking square bus” which was used to take the children to sport (see [147] above). Mr Simms stated that students were transported by bus and two trips were made if there was not enough room (see [195] above). Mr Pogson stated that “students were not supposed to travel by car”, “they were supposed to go by bus and return by bus” (see [201] above). Mr Perini, Mr Rasmussen and Mr Johnson gave evidence to similar effect (see [207], [215] and [222] above).

461. Although it may be inferred from the evidence that students were required to attend sports training by bus, it does not deal with the question of whether any directions to that effect were given, much less the steps put in place to protect children generally. It thus seems to me that absent the Reverend Sandars, Trinity is not in a position to deal meaningfully with the allegation that the incident on the way to sport was caused by a breach of the non-delegable duty.

462. The same may be said concerning the second set of allegations, namely the assaults at Drummoyne. The respondent in his statement stated that these took place in 1974 and 1975 after which Futcher drove him home. He said nothing about how he came to go with Futcher to the unit at Drummoyne. Even if it could be assumed that Futcher picked him up from school or from a school activity, Trinity would encounter the same difficulty in dealing with this allegation as in dealing with the first allegation.

463. The third allegation of sexual assault dealt with incidents which occurred when Futcher was said to have picked up the respondent from Trinity Grammar in his van. The respondent in his statement seems to put these incidents no earlier than 1975 and does not seem to suggest that he was picked up from either the Preparatory School or the Senior School. Even if it could be assumed that the respondent is mistaken in his statement, Trinity encounters the same difficulty in dealing with the claim of non-delegable duty arising out of these assaults as with the first two sets of allegations.

(ii)   Vicarious liability in respect of the first three claims of assault

464. I have set out what are claimed as “Particulars of vicarious liability of the defendant” at [37] above. The particulars in subparagraphs 13(a)-(g) seem to rely merely on the teacher-student relationship which existed between Futcher and the respondent.

465. Although it may be accepted that Futcher was a teacher at the school and at least in that capacity had some association with the respondent in 1974, that does not seem, in my opinion, of itself to give rise to vicarious liability having regard to what was said in Prince Alfred College. To establish vicarious liability it will be necessary to determine whether Futcher was placed in a position of power and intimacy vis-à-vis the respondent which gave the occasion for the wrongful acts, such that they could be regarded as having been committed in the course of Futcher’s employment: see Prince Alfred College at [84]-[85].

466. If that is correct, the same difficulties arise in relation to the claim based on breach of the non-delegable duty. Trinity, in the absence of the Reverend Sandars, is not in a position to ascertain one way or the other whether it acquiesced in or authorised Futcher to transport the respondent to sport, to pick him up to take him to the unit at Drummoyne or to pick him up in his van. Trinity is unable to provide a meaningful response to the claim.

467. It should also be noted that it was alleged in the particulars that the school failed to remove Futcher from his “teaching position and/or camp supervisor position, following the disclosure by [Green] to Sandars in late 1975” (see subparagraph 12(r)). The difficulty with this is that by 1975 the respondent was in the Senior School and Futcher was not placed in a position of power and intimacy over the respondent. More fundamentally, because of the death of the Reverend Sandars, Trinity cannot deal meaningfully with that allegation.

(iii)   The camps

468. The particulars of sexual assault allege that assaults took place at camps in Macquarie Fields and other locations such as Camp Chakola and the Colo River. Trinity accepted that Camp Chakola was a school camp and to the extent that the allegations were limited to abuse at that camp, it was in a position to meet them. The particulars of the breach of non-delegable duty allege that the camps were sanctioned by the school. The particulars of paragraph 12 of the Statement of Claim rely on a statement made by Futcher in his trial that in 1974, he informed the Reverend Sandars that he was organising camps at Macquarie Fields for “selected students from Trinity Grammar School” and the Reverend Sandars allowed Futcher to organise and attend these camps. It also relied on extracts from “The Triangle” in 1974 which referred to Crusader Camps in the Murrumbidgee area and the annual Chakola Camp and an extract from “The Triangle” in 1975 which promoted group vacation camps and class excursions. I have set out the detail of this material at [232]-[238] above.

469. There is no reference in the documentary material to the Macquarie Fields camp. I have set out the reference to the Colo River camps in the school material at [229], [237] and [238] above. None of these references relate to the period when the respondent was at the Preparatory School.

470. Limited assistance can be gained from the teachers who were interviewed as to the circumstances that students came to attend camps at Macquarie Fields or Colo River. Mr Connors was able to state that “Trinity had given approval [to the camps] as letters were sent home with students informing their parents about the camps”. However, he stated that he believed the camps were held during school holidays as a private arrangement between the teaching staff who were organising them and parents who wanted their child to attend. In his affidavit, he stated that some holiday camps occurred at Colo River on weekends (see [112] above). Similarly, Mr Jockell was able to state that some parents were keen to pay for their children to attend camps during the school vacation periods and it was “lucrative” for the teachers who wanted to take the children on vacation. Mr Jockell stated that to his knowledge, it was “a private thing – a private arrangement between the teacher and the parents” and that “the school wasn’t involved” (see [119] above). Mr Christie recalled that he organised a camp with the knowledge of the Reverend Sandars during school holiday time for students to Myall Lakes (see [172] above). He stated that he had the Reverend Sandars’ permission to contact the parents to make the offer to take the children on camps during the school holidays.

471. Mr Tritter could only recall the Chakola camps. Mr Southward said that he believed the Colo camps were “a private thing”. Ms Ballard said that there were camps at the Colo River but she was not involved in them. Ms Brown did not recall camps other than the Chakola camp. Ms Harris did not recall camps called Chakola or Colo River or Macquarie Fields. Mr Hines who was employed from 1976 said that he had “a vague recollection of a camp called Munjon/Colo River Camp” which he thought became part of the school outdoor education programme at a later time. This is consistent with the 1977 report in “The Triangle” (see [237] above).

472. The other information concerning the Colo River camps in the documentary material is summarised at [237]-[238] above and information concerning the Munjon camps at [239]-[242] above. This postdates the assaults.

473. There was also the statement made by Betteridge to Mr Riordan that the Munjon camps were run by Terry Simpkins who had left Barker College to run the Munjon camp full-time. He said that children attended from Barker and Trinity. He said that Futcher went up to the Munjon camps, “but not too often”. Betteridge has since died.

474. There was finally the evidence of Mr Thompson of his unsuccessful attempts to obtain evidence from Mr Simpkins (see [256] above).

475. This review of the material demonstrates, in my opinion, that Trinity is unable due to the effluxion of time, the unavailability of witnesses, particularly the Reverend Sandars and the absence of documentation concerning the attendance of pupils at the camp, to deal in any meaningful fashion with the critical question of whether Futcher was placed by Trinity in a position of power and intimacy which gave the occasion for the wrongful acts.

476. The absence of the Reverend Sandars and the unavailability of documentary material mean that the same problems arise in respect to the claim for breach of non-delegable duty in relation to the camps as arises in relation to the other assaults. It should be noted that paragraph 13(h) of the particulars of vicarious liability which deals with the complaint by Peter Green, suffers from the difficulties to which I have referred in dealing with the other claims for breach of non-delegable duty.

468. In these circumstances, Trinity has made good the proposition that the material available to it is not such as to enable it to deal meaningfully with the claims against it. However, whether that leads to the conclusion that a stay should be granted depends on a consideration of two further questions: first, whether the inquiries made were adequate and second, whether it could be said that Trinity, by not investigating the claim earlier, was responsible for the position in which it finds itself.

(iv)   The adequacy of the inquiries

478. The primary judge made a number of criticisms of the extent of the inquiries. I have already indicated that, in my opinion, the primary judge was incorrect in suggesting that undisclosed statements of Mr Wilson-Hogg, Mr West or the Reverend Sandars may have existed. I am also of the opinion for the reasons I have already given, that the subpoenas sent to the police and the Director of Public Prosecutions were wide enough to cover all material which remained in their possession at the time the subpoenas were issued.

479. I have also dealt with the criticism by the primary judge that Trinity had failed to deal with the “formal structure” of the school and the suggestion that he made concerning the statement in the letter of 9 September 2004 that the school was “under the control of the Synod”.

480. The next criticism made by the primary judge was that there was a failure to obtain information from the council of the school and the Archdiocesan Council. So far as the school council was concerned, Mr Thompson stated that minutes of the school council had been obtained but not reports. Having regard to paragraph 75 of the affidavit of Mr Thompson which states that “all available documentary material from Trinity” was obtained, it can be accepted that any school council minutes relevant to the claim would have been disclosed.

481. So far as reports to the school council were concerned there is nothing to suggest that reports of arrangements for camps had been provided to the board. As the allegation of abuse was not reported to the school until 1997 there would be no reason for any report up to that time. Having regard to Mr Dungan’s statement that the matter was left to the police to investigate, there is nothing to suggest that the council would have been supplied with any information. It should also be noted that the chairman of the school council at the time of the abuse, Mr Holt, died in 2004.

482. There is also nothing to suggest that the Archdiocese played any role in the operation of the school apart from occasionally involving itself in what might be described as spiritual matters. There is nothing to suggest that it would have any information concerning the camps or the sexual assaults which were reported in 1997.

483. The primary judge also stated that inquiries could have been made from parents of children who attended the camps at the time. However, even assuming that some of those parents had a recollection of the children going to the Colo River and Macquarie Fields camps in or around 1974 and giving permission slips for those children to go, it is at best speculation that one or more of those parents would be able to give evidence as to the structure of the particular camps in question or of matters relevant to the question of whether Trinity placed Futcher in a position to make it vicariously liable for his acts.

484. The primary judge also criticised the failure of Trinity in concentrating on upper primary teachers stating that the investigations should have been extended to lower primary school teachers, teachers in the early or junior years of the senior school and teachers who joined the Preparatory School after the respondent left Trinity (see [311]-[312] above). Mr Thompson in his affidavit stated his reason for not pursuing teachers who taught Kindergarten to Year 2 (see [252] above). His approach, in my opinion, was supported by the statements and affidavits of the three primary teachers who taught the early years of the primary school, Ms Diamond, Ms Brown and Ms Ballard. That evidence established that Kindergarten to Year 2 were housed in a separate building, went on separate camps and that these teachers had little or no knowledge of camps in the Colo River. A further lower primary school teacher, Ms Harris, did not add anything further. There is nothing to suggest that any other lower primary school teachers could have provided further information.

485. The primary judge’s criticism of Trinity for failing to interview teachers who joined the school after the respondent left, in my respectful opinion, was not justified as it ignored the fact that a considerable number of the teachers interviewed remained at the school well after the respondent left; Mr Connors until 2014, Mr Jockell until 1982, Mr Tritter until 1977, Mr Southward until 2007, Ms Diamond until 2010, Ms Ballard until 2008, Ms Harris from 1977 until 1995, Mr Hines from 1976 to 1987, Mr Scott from 1976 to 1980, Mr Simms until 1977 and Mr Pogson until 1982. There is no reason to suggest that any other teachers who joined the Preparatory School after Futcher left would have any greater knowledge than those teachers, or that teachers who only taught in the early years of the secondary school would have any greater knowledge.

486. Further, there is nothing to suggest that the Reverend Sandars’ daughter Deborah Sandars would have had any knowledge of the organisational structure of the school and particularly the organisation of camps throughout the upper primary school. The suggestion by senior counsel for the respondent that something might be retained in the family archives was, with respect, speculation. It was also unlikely that Barker College would have any material concerning Trinity’s role in permitting the students to attend the camps that was not held by Trinity.

487. The primary judge also dismissed the absence of insurance as a relevant consideration (see [328] above). I have referred at [293]-[297] above to material which would suggest that insurance covering a claim of this nature existed at the time. The remarks of the primary judge that Trinity could meet the liability in any event, in my view, overlooks the prejudice which was described by Bryson JA in the Court of Appeal in Batistatos at [71]. Like the present case, there was nothing in that case to suggest that the applicant for a stay could not meet any verdict.

488. Senior counsel for the respondent, in addition to supporting the criticism of the primary judge, submitted that ‘Old Boys’ at the school were an available source of information. It was not made clear how they could assist. If they were in primary school at the time of the incidents, it would be extremely unlikely they would have any knowledge of the manner the camps were organised and promoted. He also submitted that those teachers from whom statements had been obtained could be further proofed or cross-examined by reference to the documents that were available and more information could be obtained from them. However, there were no documents relevant to the alleged breaches relating to assaults which took place other than at the camps, no documents relating to the Macquarie Fields camp and the only documents relating to the Colo River camp referred to a period after the applicant left the Preparatory School. It is speculative to say that more might be obtained from those teachers.

489. It is true as senior counsel for the respondent pointed out that Trinity needed to surmount a “high bar” to obtain the relief it seeks. It was necessary for it to make all reasonable inquiries to ascertain if material was available to enable it to meet the claim. However, that does not mean that it was necessary to pursue any line of inquiry however remote which may, as a matter of mere possibility, produce some information which may be of assistance in dealing with the issue. That would pose an unreasonable burden on the applicant and would of itself be oppressive and unfairly burdensome.

490. In my opinion, the inquiries made by Trinity were reasonable and demonstrate that notwithstanding those inquiries, Trinity cannot meaningfully deal with the claim against it.

(v)   Is Trinity’s inability to deal with the proceedings due to its own neglect or default?

491. This question was expressly left open by the primary judge ([132] of the primary judgment; see [338] above). Although no Notice of Contention has been filed, it was the subject of argument and it is appropriate to deal with it.

492. It must be emphasised that this is not a case where there was any suggestion of deliberate destruction of documents, whether before or after the litigation commenced: see the discussion in Lane v Registrar of Supreme Court (NSW) (1981) 148 CLR 245; [1981] HCA 35 at 260; British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197. Nor, despite the reference by the primary judge to “turning of a blind eye”, was there any evidence to suggest that Trinity deliberately failed to inquire for fear of ascertaining the true position. Although senior counsel for the respondent stated that it “beggars belief … that it wasn’t carefully investigated”, the unchallenged evidence of Mr Dungan was that the investigation was left to the police.

493. There remains the question of whether the failure to investigate the claim earlier leads to the conclusion that Trinity should be denied a stay because had an earlier investigation been made, it would have been able to deal with the claim.

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.

495. In the present case, Trinity was first notified of the sexual abuse in 1997. That notification came from the police, not from representatives of the respondent. The claim at that stage was statute-barred. It does not seem to me that in those circumstances there was a need at that point to investigate the claim. Mr Dungan’s approach to allow the police to investigate was justified.

496. The events in 2004 give rise to greater difficulty. As I have pointed out Hannigans made a claim on behalf of the respondent on 7 September 2004 and on 10 December 2004 indicated an intention to institute proceedings by 20 December 2004.

497. At that stage, although Mr Wilson-Hogg had died, the Reverend Sandars was still alive and presumably was able to make a statement. Further, having regard to the lapse of time between the events and the claim and no doubt the increasing age and failure of recollection of witnesses, it would normally have been appropriate to promptly investigate the matter.

498. However, Trinity through its solicitors denied liability, explained the reasons for that denial and asked on what basis the respondent’s claim was not statute-barred by reason of the Limitation Act (see [11] above).

499. The position under the Limitation Act as it then stood was complex, the limitation period of 6 years prescribed by s 14(1) applied (neither s 18A nor s 50C applied having regard to the date of accrual of the cause of action). By December 2004 it would not have been possible to obtain an extension of the limitation period under s 58 of the Act as the ultimate bar in s 51(1) of 30 years would have applied. It should be noted that the solicitor’s letters claimed that the assaults occurred whilst the respondent was in primary school, his last year in primary school being 1974.

500. However, an application for extension could have been made under s 60G. Although this section is expressed only to apply to a cause of action which accrues after 1 September 1990, clause 4 of Schedule 5 to the Act extends its operation to a cause of action which accrued prior to that date and empowered the Court to make an order under that section on an application made within the period of 3 years referred to in s 60I, or 3 years commencing on 1 September 1990.

501. Section 60G and s 60I were in the following terms:

“60G   Ordinary action (including surviving action)

(1)   This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2)   If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.”

“60I   Matters to be considered by court

(1)   A court may not make an order under section 60G or 60H unless it is satisfied that:

(a)   the plaintiff:

(i)   did not know that personal injury had been suffered, or

(ii)   was unaware of the nature or extent of personal injury suffered, or

(iii)   was unaware of the connection between the personal injury and the defendant’s act or omission,

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and

(b)   the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii).

(2)   Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision.”

502. There is no suggestion made by those advising the respondent at the time that the respondent had only become aware of the matters in s 60I within the 3 year period prior to the solicitor’s letter. Indeed, the solicitors for the respondent did not reply to the letter from the solicitors for Trinity dated 16 December 2004.

503. In those circumstances, it was not unreasonable for Trinity to adopt the position that the claim was statute-barred and not investigate its underlying merits. Notwithstanding the threat to commence litigation by 20 December 2004, litigation was not commenced by that time or for that matter, in the ensuing years. Further, no attempt was made to rebut the contentions of Emil J Ford & Co Lawyers of 16 December 2004. In those circumstances, Trinity was entitled to proceed on the assumption that no claim was going to be brought against it by the respondent.

504. Nothing further was then heard from those acting for the respondent until 12 June 2014. By that time the Reverend Sandars had died. Mr West died before the institution of the proceedings. Although it is true that no statement was taken from Mr West by Trinity or its representatives between 12 June 2014 and 25 January 2016, a statement was taken from him by the police which gave his recollection both of Futcher and the camps.

505. Further, there is nothing to suggest that any further material would have been available in the period between 12 June 2014 and February 2016 when Mr Thompson was instructed and investigations commenced. It also must be remembered that until s 6A of the Limitation Act was passed, the same Limitation Act difficulties confronted the respondent. In all these circumstances, the difficulty in which Trinity finds itself in dealing with the proceedings was not due to its own neglect and default.

Conclusion

506. In these circumstances, Trinity is in a position where it is unable to deal meaningfully with the claim and a continuation of the proceedings would be unfairly oppressive and burdensome to it in the sense described in Basistatos and Moubarak. A permanent stay should be granted.

507. In the result, I would make the following orders:

1. Grant the applicant leave to appeal.

2. Order the applicant file a Notice of Appeal in the form of the proposed Further Amended Draft Notice of Appeal within 7 days.

3. Allow the appeal.

4. Set aside the orders of the primary judge.

5. Order the proceedings be permanently stayed.

6. Order that the respondent pay the applicant’s costs of the appeal and the proceedings in the Court below and be entitled to an indemnity certificate under the Suitors Fund Act 1951 (NSW) if eligible.

508. PAYNE JA: I agree with Bathurst CJ.

509. SIMPSON AJA: I have read in draft the judgment of Bathurst CJ. I agree with the orders his Honour proposes and with his reasons therefor.

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Schedule to Council of Trinity College (47.9 KB, pdf)

Endnote

Decision last updated: 09 December 2019