Anderson v The Council of Trinity Grammar School

Anderson v The Council of Trinity Grammar School - [2018] NSWSC 1633 - NSWSC 2018 case summary — Zoe

As mentioned earlier, at the time that the abuse occurred, the Limitation Act provided for a finite period during which a claim for damages would need to be commenced. That finite period dated from the completion of the cause of action and, while it provided for circumstances that would allow an extension of that time, otherwise precluded the commencement of proceedings of this kind after a period of over 40 years. In 2016, the Limitation Act was amended by the insertion of s 6A, which is 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."

[3]

Principles

One of the issues upon which the exercise of the discretion of the Court depends is the strength, or otherwise, of the claim for damages by the plaintiff. As earlier stated, four of the assaults by Mr Futcher are admitted on the pleadings by Trinity. It is unnecessary at the moment to deal with the Cross-Claim and Defence to the Cross-Claim (proceedings between Trinity and Mr Futcher).
Nevertheless, if the conduct about which complaint is made, including the four admitted incidents, were to have occurred, there can be no doubt that an assault has been occasioned and, subject to its quantification, damage would have been inflicted. The issue in the proceedings between the plaintiff and Trinity depends more on the operation of vicarious liability and any non-delegable duty of Trinity, than on the happening of the occurrences or the assessment of damage.
In the Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40 (hereinafter "Introvigne"), the High Court held that a school authority owes a personal, non-delegable, duty of care to its pupils. In Introvigne, Mason J (with whom Gibbs CJ agreed generally) identified the duty as a more stringent one than the general duty to ensure that reasonable care is taken. Nevertheless, that was not a view for which there was majority support in the reasons for judgment.
In New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 (hereinafter "Lepore"), in the judgment of Gleeson CJ, the Chief Justice said: "[31] The failure to take care of the plaintiff which resulted in the Commonwealth's liability in Introvigne was a negligent omission on the part of the teachers at the school, acting in the course of their ordinary duties. The hospital cases, which were treated by Mason J as analogous, similarly involved negligence. A responsibility to take reasonable care for the safety of another, or a responsibility to see that reasonable care is taken for the safety of another, is substantially different from an obligation to prevent any kind of harm. Furthermore, although deliberately and criminally inflicting injury on another person involves a failure to take care of that person, it involves more. If a member of a hospital's staff with homicidal propensities were to attack and injure a patient, in circumstances where there was no fault on the part of the hospital authorities, or any other person for whose acts or omissions the hospital was vicariously responsible, the common law should not determine the question of the hospital's liability to the patient on the footing that the staff member had neglected to take reasonable care of the patient. It should face up to the fact that the staff member had criminally assaulted the patient, and address the problem of the circumstances in which an employer may be vicariously liable for the criminal acts of an employee. Intentional wrongdoing, especially intentional criminality, introduces a factor of legal relevance beyond a mere failure to take care. Homicide, rape, and theft are all acts that are inconsistent with care of person or property, but to characterise them as failure to take care, for the purpose of assigning tortious responsibility to a third party, would be to evade an issue." [Footnotes omitted.]
An issue between the parties in these proceedings is whether Mr Futcher's conduct was in the course of his ordinary duties and whether there was a negligent omission by the staff at Trinity, or Trinity itself, in placing Mr Futcher in a position in which these acts could occur. The issue depends upon the circumstances relating to the employment of Mr Futcher and the circumstances relating to the conduct of the activities that were occurring when the plaintiff was assaulted.
Those circumstances depend upon issues of fact, and it is in relation to the evidence of the facts that Trinity claims prejudice.
Some of the references in Introvigne and in Lepore are references to the non-delegable duty owed by a school. Slightly different issues arise if it is argued, as it is, that Trinity is liable as a result of vicarious liability. Nevertheless, the issues are so similar that, for present purposes, they need not be treated separately.
As to the issue of vicarious liability, again, as the law currently stands, in cases such as this, liability is determined by consideration of any special role or authority that Trinity had assigned to Mr Futcher and the position in which Mr Futcher was, as a consequence, placed, in relation to the abuse of the plaintiff. The issues concerning the liability of Trinity for the conduct of Mr Futcher requires the Court to consider whether the apparent performance of Mr Futcher's role gave the "occasion" for the abuse.
In making the above determination, particular features are taken into account including "authority, power, trust, control and the ability to achieve intimacy" with the plaintiff: Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 (hereinafter "Prince Alfred College") at [81] and following. As the High Court (French CJ, Kiefel, Bell, Keane and Nettle JJ) made clear, the approach requires "a careful examination of the role that [the school] actually assigned to [that position] and the position in which [Mr Futcher] was thereby placed vis-à-vis the respondent and the other children": Prince Alfred College at [84].
On that approach, it cannot be said that the evidence available and the allegations made render the plaintiff's claim weak. Even if the witnesses, the absence of whom are the subject of complaint, were available, such witnesses would be faced with cross-examination based upon the reference to those occasions as "our camps" and other such documents or references. Further there is undeniable evidence of Trinity placing Mr Futcher in a position of trust with students, beyond classroom teaching, e.g. as a sports coach and swimming or life-saving coach.
Nevertheless, the plaintiff also seeks to argue that the liability of Trinity is broader than that suggested in the judgment of the High Court in Prince Alfred College. The plaintiff does so by reference to the recent judgment of the United Kingdom Supreme Court in Armes v Nottinghamshire County Council [2017] UKSC 60, delivered on 18 October 2017 (hereinafter "Armes"). In Armes, the majority judgment rejected, in the case of the placement of a foster child, a non-delegable duty reposed in the placement authority toward the child after placement with a foster carer, but referred to five indicia that should be considered in determining whether it is fair, just and reasonable to impose vicarious liability. Those indicia were: "(i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee's activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; and (v) the employee will, to a greater or lesser degree, have been under the control of the employer": Armes at [55] referring and approving Cox v Ministry of Justice [2016] UKSC 10; [2016] AC 660.
A similar approach has been taken by the New Zealand Court of Appeal in S v Attorney General [2003] 3 NZLR 450; [2003] NZCA 149.
The plaintiff asserts that "the law of vicarious liability is on the move", citing a comment of Lord Phillips. The Court, as presently constituted, is bound by the reasons for judgment in the latest High Court judgment on the question, which, relevantly, is summarised in the passages from Prince Alfred College. The plaintiff, however, is entitled to seek to persuade the Court that a broader approach is available, even if that submission be put only formally at first instance.
Whether or not the principles of vicarious liability are in the process of being extended, the claims by the plaintiff are plainly not unarguable and are, on the evidence that is available, to which there will be later reference, relatively strong.
Prior to the promulgation of s 6A of the Limitation Act, issues of delay in the commencement of proceedings were generally agitated in circumstances where the plaintiff was seeking an indulgence from the Court to commence the proceedings regularly. As a consequence of the promulgation of s 6A of the Limitation Act, the plaintiff has a right to commence the proceedings and a right to have those proceedings determined in accordance with the law.
The plaintiff's right to have his claim heard and determined by the Court is qualified only by the capacity of the Court to dismiss the proceedings at the threshold because of a fundamental unfairness or abuse of process in allowing the proceedings to be heard. As already stated, the defendant submits that the circumstances of the delay, and the prejudice it suffers as a result of the delay, render the proceedings unfairly prejudicial against it and incapable of a fair trial.
The authorities that deal with the necessity of a plaintiff to explain fully the delay in the commencement of the proceedings may be of less weight in circumstances where it is not the plaintiff that is seeking the indulgence from the Court. Rather, the party seeking the Court's exercise of jurisdiction to dismiss the proceedings bears the responsibility of pointing to the matters that would preclude the claim, otherwise allowed by the legislature, from proceeding.
Nevertheless, whether or not the proceedings would be unfair, or incapable of being tried fairly, does not seem to rest upon which of the parties bears the onus of proof. Rather, on the facts that have been presented to the Court, the Court must determine whether a fair trial is possible.
Two fundamental issues need to be noted. First, the trial is a trial by judge alone and not by jury. It is the judge at trial who will be required to determine whether the plaintiff has satisfied the burden of proof and established the defendant's liability. At trial, it is the plaintiff who must establish that the alleged assaults occurred. Further, it is the plaintiff that must establish that Trinity bears responsibility in damages, under the law, for the assaults.
Four of the alleged assaults have been admitted. Each of those was the subject of criminal proceedings in which the teacher, Mr Futcher, was convicted. There are other allegations of assault, which have neither been admitted nor denied.
Nevertheless, any alleged shortfall in the evidence does not go to the existence or otherwise of the assaults. It may go to whether the assaults occurred at a particular location and, on Trinity's submissions, certainly go to whether Trinity was responsible for the attendance of Mr Futcher and/or the plaintiff at those locations or bears responsibility for misconduct that occurred at those locations.
As earlier stated, the location of the assaults was not on the School grounds. Largely, the responsibility of Trinity will depend upon whether camps, at which Mr Futcher was a teacher/organiser and the plaintiff was a participant, were endorsed by Trinity, which encouraged the teacher and/or student to attend.
Some of the factors identified in relation to the authorities are set out in the defendant's written submissions and include: 1. "witnesses may have died since the events in question; 2. documents may have been destroyed since the [sic] time; 3. prejudice may exist without the parties or anyone else realising that it exists in that decisive evidence may have disappeared without anybody knowing it ever existed; 4. the longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time the cause of action arose; 5. recollections fade and human recollection is fallible such that the longer the period between the event and its recall, the greater the margin for error; 6. recollection of events which occurred in childhood is particularly susceptible to error and is subject to the possibility that it may not even be genuine even if it is honest; and 7. the effluxion of time means that there may be a lack of opportunity for the defence to fully explore [sic] the surrounding circumstances of each alleged offence."
The Court accepts that each of these is a factor in the determination of the application for a permanent stay (or dismissal), but the weight of each factor may vary depending upon the circumstances of any particular case. In circumstances where the legislature has turned its mind to the delay in commencing proceedings and deliberately abolished any time limit, the fallibility of human recollection, the fact that the proceedings may be decided on less evidence and the fallibility of childhood recollection may be of less weight.
Each of the parties accept that the determination of the Motion must depend upon the particular circumstances of each proceeding. Nevertheless, each of the parties seeks to rely upon previous judgments, not only for the principles that the reasons adumbrate, but for the factual circumstances that each party argues likens the outcome to the outcome for which they agitate.
The defendant/applicant, Trinity, relies essentially on the reasons for judgment of the Court of Appeal in Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos (2005) 43 MVR 381; [2005] NSWCA 20 (hereinafter "Batistatos") and Connellan v Murphy [2017] VSCA 116 (hereinafter "Connellan").
There can be little doubt that the greater the time-lapse between the commencement of proceedings (or more relevantly the hearing) and the occurrence of the facts that give rise to the cause of action, the more likely it is that prejudice will be occasioned. The question is not whether there is some prejudice but whether the prejudice is such that the fairness of the trial is undermined. In Batistatos, Giles JA said: "[4] In the weighing process to which his Honour refers, the plaintiff has an interest in recovering compensation for his injuries, and there is a public interest in availability of the Court's processes to enable him to do so; the defendants have a reciprocal interest in resisting payment of compensation to the plaintiff, and there is a public interest in ensuring the (relative) fairness of the trial and thus maintaining confidence in the administration of justice. While the defendants did not establish that the plaintiff's case was untenable, nor did the plaintiff demonstrate its strength; on the limited material disclosed, it is not a strong case. I agree that the balance plainly comes down in favour of a stay of the proceedings."
The reasons for judgment of Bryson JA set out more fully the principles that underpin the exercise of discretion and the facts that gave rise to the exercise in that particular proceeding. The reasons for judgment of Bryson JA were agreed to by Mason P and generally agreed to by Giles JA.
In Batistatos, proceedings were commenced more than 29 years after the accident. In these proceedings, as already stated, the plaintiff has commenced his action more than 40 years after the sexual abuse. Further, because of the disability suffered by the plaintiff in Batistatos, the normal limitation period, prescribed by the Limitation Act, did not run for the whole of the period between the motor vehicle accident and the commencement of the proceedings. As a consequence, the proceedings in Batistatos were within time.
As the High Court made clear, on appeal from Batistatos, in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 (hereinafter "Batistatos in the High Court"), every court has within its power the right to take action to ensure that its process is not abused by the hearing of a proceeding that is without reasonable grounds or is vexatious and harassing or is an abuse of process. Such a power does not depend upon the plaintiff seeking an indulgence from the court or being otherwise outside the limitation period prescribed by statute.
The defendant/applicant, Trinity, relies upon the aforementioned principles and, essentially, submits that the consequences of the lapse of time between the sexual abuse and the commencement of the proceedings resulted in a fair trial no longer being possible and, as such, constituted an abuse of process.
It is appropriate, although the reasons for judgment are not authority on the question of facts, to recite the prejudice that applied (or was alleged) by the defendant in Batistatos. It is described both in Batistatos in the High Court and in the reasons for judgment of Bryson JA in the Court of Appeal. In the latter reasons for judgment, Bryson JA summarised the prejudice in the following way: "[15] It can be taken to have been established, from evidence before Hoeben J, earlier findings by Bergin J treated as evidence before Hoeben J, findings of Hoeben J, and contentions before the Court of Appeal that: · The police report relating to investigations and inquiries into the accident cannot be located and the investigating police has not been identified, although it is clear that, as is the ordinary course, there was a police investigation into the circumstances of the accident. · It has not been suggested that a detailed investigation of the circumstances of the accident was conducted at the time by any authority other than the police. · No records of the plaintiff's treatment immediately or for some years after his injury at the Royal Newcastle Hospital can be located; nor can any contemporaneous records made by his treating orthopaedic surgeon Dr Gordon Kerridge be located, although Dr Kerridge has recollections of his treatment and has made a report, in rather general terms. · Neither of the defendants has located any reports or records relating to the plaintiff's accident and injury; and inquiries renewed from time to time, at the prompting of the plaintiff's solicitor seeking information about specific subjects, have not resulted in any significant reports or records being located. · No engineers or other officers with knowledge of the events earlier than or contemporaneous with the accident and injury have been identified or located."
A further factor, expressly recognised in Batistatos in the Court of Appeal, is the availability or non-availability of insurance on the determination of the application for a permanent stay.
As earlier stated, the submissions of the defendant/applicant, Trinity, also relied upon the judgment of the Victorian Court of Appeal in Connellan. The Victorian legislature had implemented a variation in or to the same effect as s 6A the Limitation Act and the case concerned alleged sexual assaults that had taken place 49 years before the proceedings were commenced.
The fundamental difference in Connellan is that the defendant who was alleged to have assaulted the plaintiff was, at the time of the assault, 14 years of age and, it seems, had little or no recollection of the time at which these assaults were said to have occurred. Further, the contact between the parties in Connellan was for a total of one week.
In the present proceedings, as already indicated, Mr Futcher was an adult, who has been tried and convicted in the last 10 years for four of the assaults that are alleged in the Statement of Claim. Those four assaults are not denied (and are admitted) by the defendant in these proceedings. There are other assaults alleged, as has earlier been indicated. Further, the contact between Mr Futcher and the plaintiff occurred over a significant period.
In Connellan, the Victorian Court of Appeal said: "[56] At one level it could be said that there can be a fair trial of the present proceeding because there is no real suggestion that the principal protagonists (the plaintiff, the defendant, the defendant's brother and Mr Lovett) are not all available to give evidence. Moreover, at the trial, each of the witnesses will have the opportunity to give evidence of relevant events and to accept or deny propositions put to them. That, however, is to take too narrow an approach to the question that was required to be determined by the defendant's stay application. [57] In the present proceeding, the defendant is being asked to defend himself at the age of 62 for actions he is alleged to have committed as a 13 year old in respect of a person he can only have known (on the plaintiff's case) for little more than a week. The burdensome and oppressive nature of that task is manifest. The task is made more oppressive by the fact that, by reason of the substantial elapse of time, neither side is in a position to investigate (or call evidence about) relevant surrounding circumstances and events. Further, the vagueness of the plaintiff's own recollection of surrounding circumstances makes the investigation and defence of her allegations even more problematic. [58] It is not merely the difficulty associated with investigating and defending the plaintiff's allegations of sexual assault that makes this proceeding unjustifiably oppressive: there are also significant issues of causation and quantum, the investigation of which has been made more difficult by the substantial elapse of time. The plaintiff's case is that she now suffers (and has suffered for many years) from a chronic post-traumatic stress disorder. The investigation of how and when this condition commenced and developed and its potential causes is now largely (if not wholly) precluded. Large parts of the plaintiff's history upon which conclusions on the issues of causation and quantum might be founded will now be dependent upon little more than the plaintiff's assertions of her subjective recollection of events to which she now attributes importance. [59] In the context of this case, the judge was, in our view, in error in considering that it was a 'key factor' that the defendant, his brother and Mr Lovett are 'available to give evidence'. Equally, the judge's acceptance that the defendant suffered 'some prejudice' due to the death of his parents, and that he had suffered 'general prejudice' from the lapse of time, understates the significance of the effects of the substantial delay in this case. Specifically, those two propositions fail to take into account a number of factors, including the following: 1. The defendant is now being asked (as we have already said, at the age of 62 years) to remember something he is alleged to have done at the age of 13 years. That is, the trial would be based on childhood memories from long ago. 2. The value of the evidence of the defendant's brother will be similarly affected. 3. There is some doubt as to whether the 'Eugene Lovett' identified by the police is the same person referred to by the plaintiff. Any evidence given by him would, at the very least, be of doubtful value. 4. Critically, the defendant's mother is not alive. She potentially could have been an important witness, including as to the following: whether the plaintiff did stay with the defendant's family at, and for, the time alleged; if so, whether the Aboriginal boy Eugene was also staying there; the type of supervision that was provided to the plaintiff; in relation to the second incident, whether she ever asked the three boys to take the plaintiff (a seven year old girl) to the beach; whether the plaintiff is correct in recalling being reprimanded by her over the use of a radio on her first night at the Connellan home; whether she noted anything untoward in the conduct of the plaintiff; and whether there was a swing in the backyard of the home. 5. The plaintiff's mother is no longer alive. She would have been an important witness as to a number of matters, including whether the plaintiff was placed with the defendant's family, the plaintiff's demeanour on her return from her stay, and whether the plaintiff ever did make any complaint to her about an alleged sexual assault or sexual assaults by the defendant. 6. The defendant's house has now been destroyed. If the house had not been destroyed, it would have been possible to test the plaintiff's allegations about whether she in fact stayed there by reference to its physical characteristics. That opportunity has now been lost. Further, it is now no longer possible to meaningfully test the plaintiff's allegation that the first sexual assault took place 'in a swing plane hanging from a tree' (plaintiff's statement to police in August 2013) or in bushes where the plaintiff and the defendant could not be seen (as pleaded by the plaintiff in her statement of claim). Additionally, it is no longer possible to test the plaintiff's recollection of relevant surrounding circumstances (including the assaults alleged to have been perpetrated on her by 'Eugene') by reference to the layout of the defendant's home and the location of bedrooms and other points of reference. It cannot be doubted that, if the house still existed, the layout and various locations of particular rooms would have provided fruitful avenues for cross-examination of the plaintiff to test the reliability of her evidence on some of the critical elements of her allegations against the defendant." [Footnotes omitted.]
The issues determined by the Court of Appeal in Victoria were significantly different from the issues before the Court in these proceedings. Fundamentally, the issue between the parties is not whether there was a sexual assault. Mr Futcher, an adult at the time of the assaults and who knew the plaintiff (on the pleadings) over a significant period, is available to give evidence.
The most important aspect of the issues associated with the occurrence of the assaults is that the defence filed by Trinity admits the four assaults and each of those four assaults would be admissible to prove a tendency on the part of Mr Futcher in relation to the other sexual assaults: The Queen v Dennis Bauer (a Pseudonym) [2018] HCA 40 at [48]. The issues associated with the occurrence of the sexual assault are not denied, in relation to four of the assaults, and are extremely strong in relation to the other sexual assaults.
As stated, the major issue between the parties on liability does not seem to be the occurrence of the sexual assault, but the liability of Trinity for the sexual assault by one of its teachers at a camp or during journeys. This involves the role of Trinity in the running of the camp or the role of Trinity in facilitating the attendance of students at the camp (and the attendance of Mr Futcher).
In other words, the issue between the parties is not so much the occurrence of sexual abuse, but the vicarious or other liability of Trinity for the conduct of its teacher at a location that was not the School grounds and may not have been a camp organised by Trinity. These issues depend upon the process by which the camp was organised and advertised and whether attendance by each of the plaintiff and Mr Futcher at the camp was encouraged at the school, itself.

[4]

Prejudice

As stated, Trinity relies on particular aspects of prejudice associated with the lapse of time between the assaults and the commencement of the proceedings. In particular, Trinity relies upon the manner in which the Trinity Prep School was organised and the authoritarian control exercised by the Primary Head. It is necessary to deal with this issue in some detail.
As earlier stated, Trinity is a non-government Independent School operating from Year K through to the Higher School Certificate. It operates a Preparatory School ("the Prep School") at Strathfield and a Senior School at Summer Hill. During the relevant times, Mr Wilson-Hogg and Mr West were Head Masters of the entire School and at all relevant times Rev Sandars was the Head of the Prep School.
Again, as earlier stated, the plaintiff was a student at the Prep from 1969 until 1976, during which time he attended the Prep until 1974 and moved to the Senior School for Years 7 and 8 in 1975 and 1976, respectively.
Mr Futcher was never the plaintiff's classroom teacher and was at the same campus, it seems, only during 1974. Mr Futcher was a teacher in the Prep School.
The evidence before the Court establishes that Rev Sandars ran the Prep School in an authoritarian manner and was very much in control of the Prep School. Either because of the structure of the School or because of their physical locations, or both, the Prep School was run very much as a separate entity from the Senior School. Nevertheless, Messrs Wilson-Hogg and West were Principals or Heads of the entire School, not just the Secondary School. Mr West took up his position as Head Master of Trinity in January 1975.
Each of Rev Sandars, Mr Wilson-Hogg and Mr West are now deceased and each died before the proceedings commenced. For reasons to which Patrick Gordon Thomson, in his Affidavit of 19 June 2018, attests, the investigation of previous teachers concentrated on upper-primary teachers, because of the perceived separation between upper and middle-primary teachers and the lower-primary/infants teachers.
The investigation seems to have focused on the conduct of Mr Futcher and his attendance at particular camps and interactions with the plaintiff. There does not seem to be good reason why all teachers would not be aware of the degree to which certain camps were facilitated by Trinity or whether students at the Prep School were encouraged to attend such camps. I include in the foregoing teachers in the early or junior years of the Senior School.
Further, the instructions, given to an investigator (Mr Fitzsimons), was to cease any searches for teachers who had joined the Prep School after the plaintiff left Trinity. This was on account of the instructing solicitor's view that such teachers would not have observed the relationship between Mr Futcher and Rev Sandars or the management of the Prep School at the time of the abuse. Nevertheless, to the extent that the organisation and facilitation of the camps was a continuing undertaking, of which there is some evidence, it seems that teachers before and after the plaintiff left Trinity may have been able to give relevant evidence, but were not interviewed or identified.
The Exhibit to the Affidavit of Mr Thompson of 19 June 2018 contains a number of relevant entries. First, it is clear from the magazine, "The Triangle", that Rev Sandars' daughter was involved in a scouts and cub pack group organised by the School and for its students. It seems no attempt has been made to interview Rev Sandars' daughter, Deborah.
There is also a reference to "The Teepee" a Prep School magazine. There is reference to class excursions having been developed and expanded at all grade levels, including vacation camps "organised by [Trinity's] own staff members".
Those latter camps were described as having offered "enriching experiences to many boys in group living and sharing of responsibilities. A large number of Sixth Class boys ventured far into the Murrumbidgee Irrigation Area for a seven day excursion in May." There is a reference to Chakola in the Kangaroo Valley and, in the December 1974 Magazine, there is a reference to the appointment of Mr Futcher and his interest in life-saving and its introduction as an activity in the first and third terms of that year.
In the December 1975 edition, there is again reference to the "Cub Pack" and to vacation camps and class excursions "organised by members of our Prep School staff" and the "invaluable opportunities for the intellectual, physical and social training of our boys". It describes three categories of participants, being pupils, staff and parents. At this stage, from the evidence before the Court, the enquiries by Trinity as to relevant evidence seemed to have focused only on staff (and in that regard a limited class of teachers).
In the December 1977 edition of The Triangle, there is again reference to class camps and excursions for fifth and sixth class boys at Colo and at Chakola, each of which is relevant to the allegations before the Court. There is also reference again to the Cub Packs, its regular Monday evening meetings, supplemented with outings, weekend camps and church services. Attachment 9 of Exhibit PG2 refers to weekends at the Colo River, but at the time that these camps occurred, the plaintiff was not at Trinity.
The statements of the teachers that were interviewed are instructive. One of them (Mr Connors) recalls camps on the Colo River, which he never attended and of which he was not an organiser. Nevertheless, he did attend camps during school vacation in his first two or three years at Trinity and recalls that letters went home with the boys to the parents, advertising the camp and informing them of an activity for the school holiday and inviting or encouraging parents to enrol students in the camp.
Mr Southwood describes the camps at Colo as "a private thing" which were optional and held over the school holidays. Ms Diamond attests to the separate running of the Prep School from the Senior School and that the Head Master, at that time Mr Wilson-Hogg, was the overall Head Master at Trinity, but the Preparatory School had little or nothing to do with the Senior School.
Ms Diamond recalls the holding of school camps, but does not recall whether they were every year and does not recall if parents attended. They were generally for Years 5 and up and did not involve any of her classes. She did not attend any of the camps.
Ms Diamond also attests to the "one-man band" which Rev Sandars operated in relation to the Prep School and that he liked to be in total control. Ms Diamond gives evidence that there was a Deputy, but the Deputy did not have much "authority". There is no evidence of the state of knowledge of the Deputy, nor, it seems any attempt to obtain a statement from him, apart from the Statement in the Police Brief, which deals with records of enrolment.
Ms Ballard recalls Mr Futcher as a teacher, but had very little contact with him as he was teaching in the Year 5 and Year 6 area. Ms Ballard was teaching at the kindergarten and transition years and the two sets of teachers had little to do with each other.
Ms Ballard went on school camps nearly every year until approximately 1997 or 1998, when they ceased because they required too many staff. The camps that Ms Ballard attended were for transition and Year 1 students and were not the relevant camps in terms of the allegations in those proceedings. She does, however, recall the involvement of Mr Betteridge, about whom certain other allegations were made that may be peripherally relevant to the proceedings before the Court. Ms Ballard does recall that there was generally a ratio of five boys to one adult, at least for the ages for which she was responsible, and the first camp that she attended involved Mr Betteridge and some Year 6 boys. The camps were held once a year.
In accounting terms, Ms Ballard recalls that there was a "Camp Account" and parents were charged and it went on their school bill. Nearly every child went on the camps. The fee at the time was $35. Ms Ballard recalls there being camps at the Colo River in which Ms Ballard was not involved and cannot recall whether the camps were held during school term or otherwise. Ms Ballard does not recall camps at Chakola, or Kangaroo Valley. Other evidence is given by the teachers to the existence of those camps.
Mr Simms, for example, recalls Mr Futcher and Mr Betteridge taking boys on a Colo River camp in August and he recalls school camps to Chakola in the Kangaroo Valley.
Before the Court there is a selection of magazines, both "The Triangle" and "The Teepee" and they contain significant reference to camps, some of which were camps of the kind described by the plaintiff.
The issue, however, is not whether evidence exists of the camps and the degree to which the School and its staff facilitated the camps and organised the camps, the issue is the extent to which evidence does not exist that might otherwise have existed and/or the extent to which Trinity is prejudiced, because detailed evidence of particular camps, their organisation and encouragement by the School, is or may be unavailable. However, there is no requirement that the trial be perfect
Further, the formal structure of the School is not absolutely clear. It seemed from a letter dated 9 September 2004 on the letterhead of the Anglican Church Diocese of Sydney (the "Archdiocesan Council") to the Head Master of Trinity Grammar School, that Trinity was "under the control of the Synod": Exhibit CD1, p 37 (although these issues were not the subject of submissions by the parties). Nor is the Court in possession of evidence of the nature of that "control".
There are a number of other aspects that should be noted. In the statement of the plaintiff's mother, she recalls a conversation with Rev Sandars (Exhibit 3 at [36]) in which Mrs Anderson had a conversation with Rev Sandars in or to the following effect: "by the way did you know that Neal Futcher was attacking boys at the school and attacked Rob?" Rev Sandars said: "yes".
Mrs Anderson went on to say that Rev Sandars then "just shut his mouth tight, like he didn't want to say anything else. He didn't say another word about it, and I didn't ask any further as I could see he wasn't going to talk about it. I was just horrified. So I didn't know whether he meant he knew at the time, or he found out after".
To the extent that the plaintiff was allowed, by the trial judge in these proceedings, to adduce evidence of that conversation, the defendant maintains that its inability to obtain a version of the conversation from Rev Sandars or otherwise to investigate the accuracy of that comment; or its truthfulness; or if it applied to the period during which Mr Futcher was a teacher at Trinity, is highly prejudicial.
Ultimately, the structure of Trinity has not been adequately explained by the defendant. While there is much evidence from teachers who were supervised by Rev Sandars as to his authoritarian nature and his independence, there is little evidence of the formal structure of Trinity beyond the relationship between Rev Sandars and the Principal or Head Master of the College as a whole. The role of any Council of the College or Board of Management is unexplained. The documents before any Board of Management or the absence of them is unexplained. It seems there has been no search or enquiry for Board or Council papers or Reports or of past Board or Council members
On the evidence before the Court, there has been no attempt by Trinity to investigate the circumstances, in which the camps were held, with members of the Archdiocesan Council, members of the School Council/Board or teachers in the Senior School. There seems to have been no attempt to investigate the role that Trinity Preparatory School played in the facilitation of the camps and the encouragement of attendance from parents of students who attended during that period.
Much reliance is placed by Trinity on the unavailability of archive documents for the relevant period. Unusually, the original document production did not produce documents, which were later discovered, relevant to a period prior to the most relevant period, when Mr Futcher and the plaintiff were at the School.
Archive documents were discovered relating to the period 1961 to 1974, being the Head Master's File-Memoranda to Rev Sandars from 1961 to 1974. Further, there is a file found in archives being the Head Master's correspondence relating to the Prep School from 1964 to 1973. There is no relevant file relating to Mr West or the period later in time, except times that are wholly irrelevant to the proceedings before the Court.
As a consequence of the foregoing, Trinity says documents do not exist for the period up to 1974 until some time after Mr Futcher and the plaintiff had left Trinity.
Of itself, the absence of files for a period that was the subject of criminal investigation may not be unusual. However, the archivist has produced files both before and after the period in question.
The defendant has adduced no evidence to show an attempt by it to contact the Police or the Crown in relation to this "missing" material. It is clear from the evidence that has been adduced (see Exhibit CD 1 to the Affidavit of Campbell Dungan sworn 29 June 2018 at p 33), that Trinity put the officer in charge of the case in touch with its archivist in or about June 1997.
If there were a file or files for the period in question, it is most likely that Police would have obtained it or them, either with the consent of Trinity or during the execution of its search warrant in 2014.
Further, Trinity were on notice as to the claim by the plaintiff from information provided by the plaintiff, NSW Police and the Archdiocesan Council no later than 2004. Rev Sandars did not pass away until May 2012.
There is no evidence adduced that the defendant did not interview Rev Sandars between 1997 and 2012; there is no evidence that the Police did not interview Rev Sandars for the criminal investigation between 1997 and 2012; and there is no evidence that the defendant has been denied a version of events by Rev Sandars or sought to obtain from the prosecuting authorities the files that might otherwise exist.
Further, there is no evidence from the defendant that it has sought material of such kind from the members of the Council/Board of the School; from the members of the Archdiocesan Council; or from parents of children at the school who attended or were asked to attend camps on the holidays and on weekends or other such persons.
There is evidence, from Mr Betteridge, of the organisation of camps. Understandably, Trinity does not seek to rely only on Mr Betteridge, given his conviction for similar offences during his teaching career.
The earlier mentioned magazine articles contain references to "our camps" on a number of occasions. Of itself, that may not be sufficient detail to warrant a finding in relation to vicarious liability. Nevertheless, it is a publication of Trinity or authorised by Trinity.
Lastly, in terms of prejudice, it should be noted that the Affidavits and accompanying material disclose that the defendant was insured, but the insurer is unable to be identified. That is a further factor in relation to the prejudice suffered by Trinity.
However, it is not suggested that Trinity would be unable to meet any damages assessed or would find it difficult to meet any damages assessed. The lack of material as to the identity of the defendant's insurer also means that, even if insurance existed, it may not have covered the damages in question.

[5]

Conclusion

As already stated, there are a number of matters of prejudice to which Trinity points. Largely, that prejudice relates to the death of Rev Sandars and the inability, thus far, to locate files (or all files) for the relevant period.
As already stated, it would be most surprising if, during the course of the Police investigations, a statement was not taken from Rev Sandars. Further, it would be most surprising if the Police (or the DPP) were not in possession of files relevant to the camps and their conduct that were held by Trinity and were the subject of production and/or the execution of a search warrant.
It seems that the defendant has taken no steps to seek, from the DPP or the Police, its material in relation to these issues. The material before the Court includes photographs of the Exhibit List of the Police and some extracts of the Police Brief. There is a subpoena to Mr Futcher seeking material seized by the Police from him, but no evidence of the terms of any subpoena to the Police. The subpoena to Mr Futcher seeks other material.
There is evidence that on 1 February 2017, all Police exhibits were returned to the owners: Ex PGT2, p 493. The distribution by Police occurred, inter alia, because Trinity wanted from the time it first became aware of the proceedings until after that date to request any documents.
There is in evidence, as already mentioned, a Statement by Mr Peter Green, the Deputy Head of the entire School. That Statement was provided to Police and deals with certain records.
The Police Brief has been examined by Trinity (Affidavit of Patrick Thompson at [66], [69], [75(b)]). None of the affidavits attach the whole Brief and, as stated, no one has testified that no statement from Rev Sandars exists, either in the Police material or at the Archdiocesan Council.
The proposition, which forms part of the alleged prejudice suffered by Trinity that no instructions can be obtained and no statement is available from Rev Sandars, Mr Wilson-Hogg and Mr West, has not been shown to be so. Moreover, there is a statement by Mr West and we know precisely what he would have said. In Exhibit PGT2, p 50, [7], Mr West's Statement to Police states: "[7] I knew that some members of the Preparatory School staff arranged camps in the school holidays with the support of parents of the boys. I don't know how the camps were advertised. In the 1970s during the time of Futcher's employment at TGS I was not aware of Futcher specifically taking TGS boys away on school camps at weekends or during school holidays, although I did know that some camps at Colo Rivers were arranged. At the time I was no aware of who arranged the camps. During my Headmastership TGS did hold excursions for various reasons for students throughout the school years. [8] At the time I knew nothing of Neil Futcher using a cane against the TGS students at the Preparatory School, however I am aware that the cane was used both at Summer Hill and at Strathfield."
As for the issue about caning, there is significant information. The students' nickname for Mr Futcher was "Futcher the Butcher". Many of the teachers attest to Mr Futcher's heavy-handed approach to corporal punishment and there is a "Punishment Record Book" for a least parts of 1975.
Further, the Archdiocesan Council was aware of these issues well before the death of Rev Sandars. On one construction of the material before the Court, it is the Archdiocesan Council that controls Trinity. Further, Trinity itself was made aware of these allegations long before the death of Rev Sandars.
There is evidence of the searches performed and the availability of files and statements relating to this period and involving Rev Sandars. In the Affidavit of Patrick Thomson, sworn 19 June 2018, who is the solicitor on the record, he says: "I received instructions to act for Trinity in respect of these proceedings in February 2016. In that month I formed the view that all available former 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. I asked Trinity to advise the identities of those staff members together with their last known whereabouts."
Earlier, Mr Thompson had attested to the fact that Reverend Sandars, Mr Wilson-Hogg, and Mr West are now deceased, having passed away before proceedings commenced. A copy of the death notices in the Sydney Morning Herald of each of those persons is before the Court. Each of them is described earlier in these reasons.
Yet, at no point does the solicitor suggest that there does not exist a statement made by Reverend Sandars either for the purpose of the Archdiocesan Council or the Police. Further, there is no evidence of any record of any request to either body for any such statement. The same is true of Messrs Wilson-Hogg and West.
The Affidavit of Campbell Dungan, who is the Bursar at Trinity and commenced as the School accountant in 1988, becoming the Bursar in 1993, attests, in relation to that issue, to the following steps or lack of them: "23 Neither I nor anyone else that I am aware of at the school took steps in 1997, 2004 or 2014 to contact former staff members to enquire as to whether they had any knowledge of the subject matter of the Plaintiff's complaints and allegations against Mr Futcher. 24 Because of Mr Cujes' contact with the Police from 1997 I believed from that point onwards that the complaints were being investigated, or had been investigated, by the Police. I expected that as part of that investigation the Police would pursue lines of inquiry as considered appropriate by them. 25 I cannot recall whether I turned my mind back to the Anderson matter after Emile Ford & Co wrote to Hannigans Solicitors on 16 December 2004." "Staff", where used in these proceedings, does not generally include Heads. Futher, it should be noted that Mr Dungan attests only to the lack of steps by persons "at the school". Such a phrase excludes officers of the Archdiocesan Council, Police and legal practitioners.
It would be most surprising if, at the time that these issues were first raised, legal advice was not sought and a statement not taken from Rev Sandars. None of the Affidavit material suggests that such a statement is not in existence. Of course, the statement would be privileged. But the existence or not of the statement is a matter that can be the subject of Affidavit, without waiving privilege. No such evidence has been adduced.
The failure to adduce evidence other than the extract from Mr West, above, that no statement from Rev Sandars or Messrs West or Wilson-Hogg otherwise exists as to the operation of the camps; the circumstances of the employment of Mr Futcher and the knowledge of these assaults; or the circumstances in which Mr Futcher was placed in a position of control; allows the Court to draw the inference that such evidence does not assist the defendant in its application.
The defendant does not claim any prejudice in relation to the camps at Chakola, because of the "unequivocal evidence" from certain witnesses. The same is not true of the Colo River (Munjon) camps and the degree to which Trinity knew of or sanctioned these activities. The material that is before the Court points irresistibly to the proposition that the Munjon camps were attended by students at Barker College (hereinafter "Barker"), as well as those at Trinity. The Trinity records evidence that fact. The Munjon facilities were opened by Mr West
Again, no attempt has been made to obtain material from Barker (an Anglican School) in relation to the organisation of the camps and the roles that Anglican Schools played in their facilitation. It may well be, for example, that, given the known participation of students from both Barker and Trinity, the camps were organised by the Archdiocesan Council. That is not in evidence before the Court. Nor does the Court possess evidence of any investigation by the defendant of the records of the Archdiocesan Council, Barker or any other such person.
There are some allegations that are plainly outside the scope of any material that might be discovered from any statement of Rev Sandars that may be in the possession of the Police. For example, there is reference to and a claim on an incident of caning. It is unlikely that the Police investigation concerned those issues, even though the records have been produced. The Court is not in a position to speculate.
Nevertheless, the records that cannot be found currently, but for which no search has been taken of the Police or the Archdiocesan Council, would enable or could enable Trinity to deal with the manner in which Mr Futcher's background was scrutinised and the steps taken to recruit him as a teacher and check his references.
Next, the missing documents may deal in greater depth with the caning incident alleged in [5C] of the Amended Statement of Claim. On the other hand, they may not. Without an investigation of the possible locations of the missing documents, the Court and the parties will never know. Presumably, even in the 1970s (or late 1970s) the School had a policy on caning and/or corporal punishment. If it did not that of itself may cause the defendant issues.
The statement, to which reference has been made, that is alleged to have been made by Rev Sandars to Barbara Anderson, the mother of the plaintiff, in 2007, may be ambiguous as to whether it refers to the knowledge of Rev Sandars at the time of the incidents or at a later time. Certainly by 2007, Rev Sandars would have been aware of the correspondence from the Archdiocesan Council and in turn, the plaintiff. In May 1997, when the Police first made enquiries and in September 2004, when the then solicitors for the plaintiff corresponded with the Archdiocesan Council and, in turn, Trinity, there can be no doubt that the School was aware of the allegations and its possible liability.
Essentially there are two competing policy considerations. The first is the fundamental right of a plaintiff to have courts exercise their jurisdiction and adjudicate on the claim that they prosecute: Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 at CLR p 519. The right of plaintiffs to have the courts exercise their jurisdiction is subject to the qualification that they have no such right where the interests of justice demand otherwise.
It is an assessment of the interests of justice that requires the Court to determine whether the plaintiff's claim can be determined justly and/or fairly.
Many cases are decided upon incomplete facts and, even without any substantial lapse of time, key witnesses can die suddenly or become unavailable: Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd (No 2) [2018] NSWSC 462 at [116] and the cases cited therein.
There are a number of factors which ultimately persuaded me that the defendant had not established prejudice to the extent it is claimed and that, as a consequence, the continued conduct of the trial could not be said to be unfair or an abuse of process.
First, the plaintiff and his parents are available and can give evidence. Presumably, the parents, at least, can be cross-examined as to the documents they were provided that persuaded them, for example, to send their son to the camps in question and the circumstances that gave rise to the level of trust that was reposed in Mr Futcher and whether the conduct of Trinity played any part in that circumstance. It cannot be assumed that the plaintiff and the parents would be untruthful, although, given the passage of time, there may be real issues about reliability.
Secondly, Mr Futcher is alive and available for examination and/or cross-examination and, in the case of Trinity, possibly cross-examination pursuant to the provisions of s 38 of the Evidence Act 1995. However, on the issue of liability of Trinity for the conduct of Mr Futcher, the legal interests of Trinity and Mr Futcher are identical.
If Trinity were not considered liable for the conduct of Mr Futcher, then no separate proceeding has been taken by the plaintiff against Mr Futcher and the Cross-Claim falls away. Unlike the situation that faced the Victorian Court of Appeal in Connellan, we are not here referring to a juvenile offender that is alleged to have offended and known the plaintiff over a very short period of time. Mr Futcher is likely to be well aware of the basis upon which he attended the camps and undertook the other steps in the relationship with the plaintiff and the basis upon which the camps and other activities were organised, including the role of Trinity therein.
Fourthly, some of the teachers who have been contacted give detailed instructions as to the organisation of the camps and whether Mr Futcher attended as claimed.
Lastly, there is the degree to which the defendant has taken reasonable steps to obtain the evidence that is available. As earlier commented, on the material that has been adduced by Trinity, no steps have been taken to contact members of the Council/Board of Trinity or the Archdiocesan Council in relation to the material in their possession as to the attendance at camps, the organisation of the camps and the role of Trinity in facilitating attendance by students.
Most importantly, notwithstanding the carefully structured Affidavits before the Court, these Affidavits do not assert that there is no statement as to the relevant circumstances by Rev Sandars, or by either Mr West or Mr Wilson‑Hogg. It may be that a more complete investigation would reveal that there was no statement by Rev Sandars or by either of the College Principals and that none of the members of the Archdiocesan Council or Board of Trinity have documents that are relevant to the issues about which Trinity says they are prejudiced. Further, it may well be that the Police are also not in possession of any further documents.
If that were the case, and Trinity were on notice of the sexual abuse and the probability of some claims or possibility of liability at a time well before the death of Rev Sandars, Trinity, in effect, would be relying on its "turning of a blind eye" and its failure to take steps at an appropriate time. Given that Trinity has not proved that statements and documents do not exist, that last-mentioned aspect need not be considered at this juncture.
The Court, as presently constituted, must deal with the evidence that Trinity has sought to adduce. While it is accurate that such material (i.e. as to the conduct or circumstances of the activities during which these assaults were said to have occurred) is not included in the evidence adduced, there is, nevertheless, no evidence that such material does not exist.
For the foregoing reasons, the Court issued the orders dismissing the Motion agitated by the defendant and awarded costs of and incidental to the Motion to the plaintiff.

At a glance

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Judgment (6 paragraphs)

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Legislation Cited (1)

Cases Cited (16)