BRJ v The Corporate Trustees of The Diocese of Grafton - [2022] NSWSC 1077 - NSWSC 2021 case summary — Zoe

NSWNSWSC

BRJ v The Corporate Trustees of The Diocese of Grafton

[2022] NSWSC 1077

Supreme Court of NSW|2021-08-13|Before: Garling J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-08-13

Before

Garling J

Catchwords

[1994] HCA 41 Mabbett v Josef & Sons Contracting Pty Ltd [2006] NSWSC 1452 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218
[2019] NSWCA 102 Newcastle City Council v Batistatos
Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134
83 ACSR 206 Williams v Spautz (1992) 174 CLR 509

Source

Original judgment source is linked above.

Catchwords

[1994] HCA 41 Mabbett v Josef & Sons Contracting Pty Ltd [2006] NSWSC 1452 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218[2019] NSWCA 102 Newcastle City Council v BatistatosRoads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20 Prince Alfred College Incorporated v ADC (2016) 258 CLR 13483 ACSR 206 Williams v Spautz (1992) 174 CLR 509

Judgment (20 paragraphs)

[1]

Background

On 14 January 2020, the plaintiff, to whom the pseudonym BRJ has been given by order of the Court, commenced proceedings by the filing of a Statement of Claim claiming damages for sexual abuse.
He alleged that the sexual abuse occurred at the hands of an ordained Anglican priest, Allan Kitchingman, whilst the plaintiff was a resident at the North Coast Children's Home ("the Home") in Lismore, which at the relevant time was located in the Parish to which Mr Kitchingman was attached.
The proceedings are commenced against the Corporate Trustees of the Diocese of Grafton ("the Trustees") which are sued as the proper defendant pursuant to the provisions of Part 1B Division 4 of the Civil Liability Act 2002, with respect to the acts and omissions of those in charge of the care and management of the Home, and the Diocese of Grafton which was, it is alleged, responsible for the appointment of, management and control and supervision of, ordained Anglican priests within the Diocese.

[2]

Mr Kitchingman

Mr Cameron Bilinsky, a solicitor, received instructions from Mrs Janette Kitchingman to act for her husband in November 2020 for the sole purpose of making an application for a permanent stay of the Cross-claim against her husband. He was informed by Mrs Kitchingman that her husband suffered from Alzheimer's Disease and that she had spoken to her husband about the court documents that had been served and he had exhibited no understanding to her of the contents of them.
Mr Bilinsky swore two affidavits referring to the information he could put together with respect to Mr Kitchingman's position. Neither party challenged that information, and there is no reason why I should not accept it.
The following account of the facts and Mr Kitchingman's mental state is derived from Mr Bilinsky's evidence.
In May 2019, Mr Kitchingman was served a Court Attendance Notice ("CAN") requiring him to attend the Local Court at Newcastle to answer a charge of an offence contrary to s 79 of the Crimes Act 1900 of buggery which was alleged to have occurred between January and September 1978 at Lennox Head. The victim of that crime is not the plaintiff, BRJ. On 10 June 2020, Mr Kitchingman was committed to stand trial in the District Court on that charge. Prior to the presentation of an Indictment, the issue of Mr Kitchingman's fitness to be tried was raised by his lawyers. That question was determined by McLennan DCJ sitting alone on the balance of probabilities and was determined using the criteria set out in R v Presser [1958] VR 45 as affirmed in Kesavarajah v R (1994) 181 CLR 245; [1994] HCA 41.
The principal evidence before McLennan DCJ was an expert report of Dr Sharon Reutens dated 13 August 2020.
At the time of her report, Dr Reutens noted that Mr Kitchingman was an 87‑year‑old man who lived with his wife and a 20-year-old grandson. Although his granddaughter was present at the start of the interview conducted by Dr Reutens via audio-visual means, Mr Kitchingman stated that he did not have any children and was unsure of the relationship between himself and his granddaughter. Dr Reutens diagnosed a major neurocognitive disorder due to Alzheimer's Disease.
She expressed this opinion: "… He has demonstrated deficits in several cognitive arenas, particularly memory, but also executive functioning and orientation. The cognitive impairments are sufficiently severe that he requires his wife to assist him on a daily basis and he would not be able to live independently. Cerebral imaging demonstrates decreased blood flow in the temporal and parietal lobes of the brain. This is consistent with a diagnosis of Major Neurocognitive Disorder in the DSM-5. … I am of the opinion that on the balance of probabilities, a court would find that he would not have capacity to stand trial. While he is generally able to understand the purpose and function of a court, to understand the functions of court personnel and to understand the difference between a plea of guilty and not guilty, the extent of his memory deficit would prevent him from being able to provide adequate instructions to his lawyers in order to make his defence. Further, he has a tendency to agree with leading questions or confabulate answers, which is clinically typical of dementias. This would render him a vulnerable witness on cross-examination. The extent of his memory deficits is of such an extent that Mr Kitchingman would not be able to follow the course of a trial. I considered whether his cognitive deficits would be remediated by having a support person take notes, breaks and other memory aids. In my opinion, Mr Kitchingman's memory is too impaired for him to benefit from such assistance."
On 24 September 2020, McLennan DCJ accepted that opinion and found that Mr Kitchingman was unfit to stand trial. As he was obliged to do, he referred Mr Kitchingman to the Mental Health Review Tribunal ("the Tribunal"), which heard the matter on 30 March 2021. It reached a decision, on 27 April 2021, which determined that Mr Kitchingman had not become fit to be tried with the offence with which he had been charged and would not during the period of 12 months from 24 September 2020 become fit to be tried.
The Tribunal had before it some further evidence. Dr Penelope Webster, a staff specialist in geriatric medicine in the Hunter New England Local Health District, expressed her opinion that Mr Kitchingman had "a diagnosis of Alzheimer's Dementia on a background of complex comorbidity, including cardiovascular disease". Dr Webster considered that Mr Kitchingman had a clinical dementia rating of 2.0 which was consistent with moderate impairment and meant that he had: "… severe memory loss with only highly learned material retained and new material rapidly lost and severe difficulty with orientation to time and sometimes to place".
Dr Reuten also gave a further report. She adhered to the diagnosis which she gave in the District Court and expressed the view that Mr Kitchingman's major neurocognitive disorder was moderately severe. She went on to say that Mr Kitchingman's condition was "… a degenerative neurological condition manifesting as a prominent impairment in memory along with a decline in other cognitive abilities" which was "… irreversible and characterised by declining cognitive functioning resulting in increasing requirement of care."
Of importance is that in her report to the Tribunal, Dr Reutens observed that Mr Kitchingman had a tendency to confabulate at times because of gaps in his memory. Of this, she said that it was not a deliberate deception but was "… part of the clinical picture of dementia" and that as a result "his account of the time period in which the alleged events occurred [1978] would be unreliable". She also thought that he would provide contradictory instructions to his lawyers. She did not think he had the capacity to instruct his lawyers. She also expressed the view that Mr Kitchingman's cognitive capacity would continue to deteriorate and that, notwithstanding the administration of medication, ongoing deterioration was inevitable.
In his affidavit, Mr Bilinsky noted that Mr Kitchingman was convicted in 1968 for an offence of indecent assault on a 16-year-old boy. He was placed on a bond to be of good behaviour for two years. Again, it is not suggested that the victim of that indecent assault was the plaintiff, BRJ.
Mr Bilinsky noted that in 2002, Mr Kitchingman pleaded guilty to five counts of indecent assault of a male which occurred in or about 1975 and 1976. He was sentenced to a term of imprisonment of 18 months between July 2002 and about February 2004.
Mr Bilinsky noted that he was given a history by Mrs Kitchingman that she first noticed signs of Mr Kitchingman's mental decline in 2018. She said his memory began to fail and he had trouble remembering things which were familiar to him. He returned his driver licence in June 2019. He suffered a physical injury in late 2019 and that physical injury seems to have accelerated his mental decline dramatically. By way of example, in early 2020 it was necessary for Mr Kitchingman to undergo two separate rounds of radiotherapy to treat two melanomas which had been diagnosed. Each round involved a schedule of 28 days of regular treatment. Although it was a matter of routine, Mr Kitchingman would, on many occasions, ask his wife where they were going and when he arrived at the hospital for his treatment, he would ask his wife why they were there.
It is clear from Mr Bilinsky's affidavit, which relates various incidents described to him by Mrs Kitchingman, that Mr Kitchingman has false memories where he recounts stories which are quite untrue and that he is unable to remember events of significance from the past which are true.
The effect of his diagnosis is that he cannot provide rational instructions, has significant difficulty with his memory and cannot be regarded as being capable of giving an accurate account of the events, the subject of the plaintiff's claim. As well, it would not be reasonably practicable for him to give evidence because he would have significant difficulty understanding the content and effect of the evidence given against him and his capacity to give evidence in his own defence would be substantially deficient. There is no expectation that his present status would improve, rather the expectation is that it would continue to deteriorate.
All of this evidence satisfies me that Mr Kitchingman has no capacity to respond to the Cross-claim brought against him.

[3]

Statement of BRJ

In order to make any assessment as to the appropriateness of making the orders sought in each of the Notices of Motion, it is necessary to understand the facts of the abuse which are alleged by the plaintiff and then the way in which the case is pleaded and is to be presented.
The witness statement of BRJ dated 1 April 2021 was placed before the Court to indicate the evidence which it is anticipated BRJ would give at a hearing. It is a lengthy and detailed statement.
BRJ recounts that in April 1974 his mother fell ill and died. At about that time, his father, who was elderly, had failing health and was unable to care for his children. As a consequence the plaintiff and his younger brother were placed in the Home. An older sister lived independently and another sister, who was younger, went to live with her grandmother.
BRJ noted that the Home was situated on grounds adjacent to St Andrews Church in Lismore. It had two residences initially and a third residence was added during the time that the plaintiff was at the Home. He recorded that there were separate blocks for girls and boys - both of whom were cared for at the Home, and that the Home housed children between the ages of 4 and 18 years.
BRJ described the abuse in the following way: "52 During the first Christmas holidays that I was at the Home, I was billeted out for the holidays. I was billeted to stay with a priest and his wife, Allan Kitchingman and Jane Kitchingman at their home in Byron Bay. I was billeted out separately from Peter [his brother]. He was sent somewhere else for Christmas. … 53 I may have seen Kitchingman around the home, in passing, but I cannot be sure about that. One day, I was told that I was going to go and spend the Christmas holidays with his family. 54 When I was staying with them, there was a girl there. I do not know who she was. I thought she might have been their daughter, but I don't know. I had never met her before. 55 Mrs Kitchingman was lovely. She was a very motherly type of woman. She made me feel comfortable and safe. For a little while, it was like being part of the family. 56 To begin with Mr Kitchingman seemed very friendly and caring. I trusted him because he was from the Church. He would talk to me and show me around places that I had never been to before. He took me to a Mexican restaurant and to soccer. He made me feel special. 57 I used to talk a lot with the girl that was staying there. I really liked her. I didn't hide my fondness for the girl from Mr or Mrs Kitchingman. 58 One day, Mr Kitchingman started a conversation about the girl. He did that when the girl and his wife had gone out. I was happy to talk to him about her because I thought it would lead to me becoming closer to her. 59 He was talking about the girl and about sex, what I could do and how a girl could become pregnant. He said words to the effect of, 'You don't have to have full penetration. You could ejaculate on her, but even a small amount of semen could make her pregnant'. 60 He said to me words to the effect of 'Do you want me to show you?'. I was a little nervous. 'It is normal for me to show you'. I said 'okay'. 61 He said to me words to the effect of 'Take your pants down' and I complied. He told me to touch myself. He started to fondle me and showed me how to become erect. He said 'This is what will happen when you are with a girl'. He asked me, 'Do you want to put your penis in my mouth?' I said 'no'. 62 He said to me words to the effect of 'Do you want to ejaculate on my face?'. He kept trying to get me to ejaculate. He said to me 'I want you to ejaculate on my face' and that 'It's ok, all the boys do it'. I didn't understand why anyone would do that, but he said 'It's OK. The other boys do it all the time and the other boys like to come on my face'. I recall I became tearful. 63 He kept trying, but I couldn't ejaculate, and he said, 'If you can't do it with me, this is how you do it. You can do it on your own and finish it off with your hands.' His wife and the girl drove into the driveway at about that time. When his wife's car drove into the driveway he said words to the effect of 'Pull your pants up. You can continue trying in your room. I'll come back later and help you if you want me to come back'. Kitchingman then walked out of the room as if nothing had happened. 64 After Mrs Kitchingman had returned, Mr Kitchingman later said to me 'You should try to release yourself'. Later for the next few days when he would walk past me, every now and then he asked me if I had released myself and when I said no, he said again words to the effect of 'I can help you to release yourself' and 'If you change your mind let me know'. 65 During the whole time that this was happening, I felt frozen. I was really scared. I didn't know what to do. I knew that it was wrong. I was so relieved when Mrs Kitchingman got back. 66 This was my first experience of anything to do with sex or 'sex education'. All that I knew about sex at that time was that some friends at school had girlfriends and they would hold hands."
BRJ went on to note that although there was no further episode of sexual abuse whilst billeted with Mr and Mrs Kitchingman, nevertheless Mr Kitchingman would say things about "releasing himself" from time to time for the remainder of the period that he was billeted there. It is clear that Mr Kitchingman said things to BRJ which reassured him that what he was talking about was normal.
BRJ recorded that he only ever saw Mr Kitchingman one time after his Christmas stay at the home of Mr and Mrs Kitchingman. It was either one or two years later - he encountered him in a laneway outside the Home and had a short exchange of conversation.
Prior to being billeted with Mr and Mrs Kitchingman, BRJ gives an account that a number of members of the Anglican clergy moved freely around the Home and within its buildings. The children at the Home were required to attend numerous Church of England-related events such as Sunday School, Fellowships and Picnic Days. He recorded that the then-Bishop of the Diocese of Grafton often visited the Home. As earlier noted, he has no clear recollection of meeting Mr Kitchingman before he was billeted over Christmas in 1974 and noted that he may have seen him around the Home but was not sure about that.

[4]

Statement of Claim

The plaintiff's claim is pleaded in a Statement of Claim filed 14 January 2020. The plaintiff pleads that the Board of Management of the Home and the Diocese owed him a direct duty of care "… to protect him from a reasonably foreseeable risk of harm". That risk, which is the subject of the duty and which the plaintiff pleads the Board of Management of the Home and the Diocese knew or should have known of, is the risk of the plaintiff being sexually abused and thereby suffering psychiatric injury, seemingly whilst a resident at the Home. It is relevant to note also that the plaintiff pleads that, in 1968, Kitchingman was charged with and convicted of committing an indecent assault of a child under the age of 16, and that the Diocese and Board of Management each knew or should have known that Kitchingman had been so charged and convicted.
As against the Diocese, the plaintiff pleads that it breached its direct duty of care in the following ways: "a) allowing Kitchingman to remain a priest and have unsupervised access to children when it knew or should have known that he had a previous conviction for child sex offences; b) failing to initiate and maintain any or any adequate system to protect the plaintiff from the risk of sexual abuse while he was under the care, control and supervision of its servant or agent, Kitchingman; c) by itself and by its servants failing to supervise or adequately supervise the plaintiff while he was under its care; d) failing to adequately supervise Kitchingman; e) failing to train Kitchingman about the harmful effects of the sexual abuse of children; f) by its servant or agents sexually abusing the plaintiff; g) failing to manage or adequately manage the risk of the plaintiff being sexually abused; h) failing to supervise or adequately supervise the plaintiff while he was under the care of its servant or agent, Kitchingman; i) failing to train or adequately train Kitchingman and other staff about the risks of sexual abuse; j) failing to institute and maintain any or any adequate system or program to educate children under its care about their right not to be sexually abused and to report such abuse to an adequately trained and qualified designated staff member, parent or police; and k) failing to exercise due skill and care in the management of its priests."
As against the Board of Management of the Home, the particulars of negligence really mirror those pleaded against the Diocese with slight adjustments to reflect the position of the Board of Management.
Insofar as the plaintiff pleads a claim in vicarious liability, it is in the following form: "38. The Diocese and the Board of Management are vicariously liable for the breaches of duty of care by Kitchingman, and its servants or agents, the trespasses and the injury, loss and damage caused to the plaintiff. 39. At the time Kitchingman sexually abused the plaintiff, he was an employee, servant or agent of the Diocese of the Board of Management. 40. The acts and omissions of Kitchingman occurred within the course of his employment, service or agency with the Diocese and the Board of Management. 41. The Diocese and the Board of Management invested in and placed Kitchingman in a position of authority, power, trust and intimacy with respect to the plaintiff who was vulnerable to the abuse of such authority, power, trust and intimacy. 42. Kitchingman relied on, took advantage of, and exploited the relationship of authority, power, trust and intimacy which the Diocese and the Board of Management invested in him, to sexually abuse the plaintiff while he was under the care of the Home. 43. Kitchingman's acts and omissions occurred while performing functions with respect to the supervision of the plaintiff and while the Board of Management and Kitchingman were acting in loco parentis with respect to the plaintiff. 44. Kitchingman was a delegate of the Diocese and the Board of Management for the discharge of their duty of care to the plaintiff."
The plaintiff pleads as a consequence of the breaches of duty and the abuse by Mr Kitchingman, for which he claims the defendants are vicariously liable, that he suffered injury, loss and damage.

[6]

Affidavit of Mr Christopher Nelson

The Trustees relied on an affidavit of Mr Christopher Nelson, the Registrar and General Manager of the Corporate Trustees of the Diocese of Grafton, which sets out the results of his investigation regarding the plaintiff's claim. Mr Nelson was not cross-examined on this evidence and it was not suggested that I should not accept it. I do.
Mr Nelson said that the Home was established in 1919 and from 1936 it was located in Lismore and formed part of the Lismore Parish. He says that the Home was within the grounds and adjacent to St Andrews Church and the Rectory of the Church. The Home was managed by an Executive or Board of Management and the Rector of St Andrews Church was the President of the Board and the Chaplain of the Home.
Mr Nelson both undertook, and caused to be undertaken, searches which related to matters relevant to these proceedings. Mr Nelson deposed to the fact that the only existing records of the plaintiff's attendance at the Home are copies of the formal documentation surrounding his admission on 27 April 1974 and a report from an officer of the Department of Youth and Community Services in Grafton dated 28 October 1974, which was directed towards whether and in what circumstances the plaintiff ought to have contact with his father who, by that time, was seemingly senile and perhaps mentally ill as well.
Other than those documents, there are no specific documents in the possession of the defendant dealing directly with, or concerning, the plaintiff.
On the other hand, it seems that there is a volume of documents with respect to Mr Kitchingman which are available and which were produced to the Royal Commission into Institutional Responses to Child Sexual Abuse in response to a Summons. Further observations are made below with respect to all of those documents.
Mr Nelson's affidavit establishes the further following facts: 1. Mr Nelson expressed his satisfaction based upon various enquiries and searches which had been made, that there were no further records to be produced; 2. with the exception of the applications for admission of the plaintiff and his brother, to which earlier reference has been made, there are no other records disclosing how long the plaintiff remained a resident of the Home or anything else to do with his stay there; 3. Mr Kitchingman ceased to be associated with the Parish of Lismore on 28 June 1976. He had been a curate in that Parish between 1969 and 1970 and then between 1 January 1973 to when he ceased in that role he served as an assistant to the rector or senior minister of the Parish; 4. in the relevant period between 1972 and 1977, the Rector of the Parish of Lismore was the Reverend Richard Mcfarlan who died in 2005; 5. between 1961 and 1973 the Bishop of Grafton was Bishop Gordon Arthur. He died on 9 June 1992; 6. his successor in office between 1973 and 1985 was Bishop Donald Shearman. Bishop Shearman died in December 2019; 7. between 23 November 1960 and 21 March 1980, the Matron of the Home was Jean O'Neill. She died in 1986; 8. the absence of the Bishop of the Diocese, the Rector of the Parish of Lismore and the Matron of the Home meant that there was no one to whom Mr Nelson could speak to obtain information about the billeting of children from the Home and how that was arranged and what steps were taken with respect to it.

[7]

Documents Produced During Mr Kitchingman's Service

Mr Kitchingman was ordained in 1963, at which point he began his service at Singleton in the Diocese of Newcastle. In 1966, he moved to Wallsend within the same Diocese, where he served as a priest until he was charged with indecent assault on a male person in around late 1968.
On 14 November 1968, the Bishop of Newcastle, the Right Reverend James Housden, wrote to the Bishop of Grafton, the Right Reverend Gordon Arthur, in the context of a priest in the Diocese of Grafton transferring to the Diocese of Newcastle, and the effect that such a transfer may have on the Diocese of Grafton. The Bishop of Newcastle included in that letter the following: "Assuming that George adheres to his original intention, I have a young married priest here who is most acceptable but is at present under a shadow. He is one of our very best priests and it may be that he will have to leave this Diocese within the next few months. I will regard it as an obligation, if things turn out as I hope, to make an offer to you as a first priority."
The Bishop of Newcastle added this handwritten note to the bottom of the letter. It said: "Highly confidential Dear Gordon, I think I can tell you now of the replacement offer in confidence. He is Allan Kitchingman, a most energetic and gifted young married priest. Prior to marriage he had some homosexual difficulties, but has resisted the tendencies since. Lately he, being popular with young people, has tried to help some of the way out youngsters in the town late at night. Recently, he had a lad ('habitual') in his car and the urge got the better of him. The police caught him red-handed and he's up on a charge. I sent him to the psychiatric clinic and today have received a good report saying that he is not a 'natural' and that he realises his own weakness and can control it. His wife is sticking to him and she is a wonderful girl (ex missionary). If I was in your position I'd take him like a shot - but he ought to leave the Diocese after his trial. I'll let you know more later."
On 22 November 1968, Mr Kitchingman was committed for sentence, after a plea of guilty to a charge of indecent assault on a male person. On 15 December 1968 he was dealt with at the Court of Sessions in Newcastle where the imposition of a sentence was deferred upon him entering into a recognizance to be of good behaviour for a period of two years. Not all of the information about those charges is available. However, a Pre‑Sentence Report is available and is summarised below.
On 4 December 1968, the Bishop of Newcastle wrote a reference for Mr Kitchingman addressed to the Chairman of the Newcastle Quarter Sessions. In that letter he included the following material: "His background was very varied and worldly in that he had been a nightclub entertainer, but I was sure that his sense of vocation and dedication was sincere and strong, and still have no doubt on that matter. Due to his earlier background and associations, I kept a very careful watch on him during his college days and subsequently. I have never had occasion to suspect him of the offence with which he is now charged. His ministry has been exemplary, and he has a real flair for work amongst young people. He has worked energetically and in obedience to those set over him in the parishes of Singleton and Wallsend. He married two or three years ago a girl he had known for many years and who had served a term as a missionary in Melanesia. Their marriage has appeared always to be a happy one, and she assists him in his work. As far as I can judge, he has been perfectly frank with me in discussing his problems since the charge was laid, and I am anxious to help him in every way possible whatever the result of the trial. If it should appear at all possible and practicable thereafter, I shall endeavour to find some way by which he may continue to exercise his ministry under a Bishop who would be fully informed of the circumstances."
A Pre-Sentence Report dated 10 December 1968, from the Adult Probation Service ("the APS"), is available. It contains a good deal of Mr Kitchingman's background. It records that Mr Kitchingman had, prior to being ordained as a priest in the Anglican Church, worked as a musician in Sydney. During that time the report notes that he met many homosexuals in musical and artistic fields, but had stated to the APS that "he never participated in homosexual, or for that matter heterosexual, behaviour probably because of strong religious and moral attitudes". However, the author of the report records their suspicion that during this period Mr Kitchingman developed "a tolerance towards homosexuals". Individuals who were consulted expressed surprise that Mr Kitchingman had committed the offence, the subject of the charge.
The Report then contains the following material: "The Anglican Bishop of Newcastle described the offender as one of the best Priests in the Diocese. He was particularly noted for the work he did with youth groups in the Singleton and Wallsend area. The Bishop expressed the view that Kitchingman was genuinely motivated in his work with young people and was not suspected of any unsatisfactory conduct."
The probation officer made enquiries about the work of Mr Kitchingman in the Singleton and Wallsend areas and said that those whom he had consulted "without exception, supported this view".
The Probation Officer summarised his opinion in this way: "Kitchingman appears to be a person of above average intelligence who has had the disadvantage of the loss of his father early in his life. As a musician and employee he has an excellent reputation. As a clergyman he is still held in high regard. Possibly the development of a tolerance towards homosexual behaviour, anxiety in his marriage due to lack of sexual adjustment and stress through overwork have contributed to his involvement in an offence of this nature. He expressed concern that his behaviour has caused embarrassment to the Church and might result in the termination of his ministry. He also seemed concerned that he might be homosexual and incapable of the normal heterosexual relationship. … However, it is felt that he is now properly motivated towards medical treatment and certainly does not possess the philosophy of a confirmed homosexual."
The Bishop of Newcastle wrote again to the Bishop of Grafton on 13 December 1968, in the following terms: "In a recent letter to you I added a handwritten postscript regarding Allan Kitchingman. His case was heard yesterday, and he was given a bond for two years in his own recognizance for $300. I am quite convinced that he is not physically and naturally homosexual, but his early life without a father, who died when Allan was five, and his later mixing in very free musical circles, affected his attitudes towards this social problem. A probation officer made exhaustive enquiries and has furnished a confidential report which was presented to the judge. I hope I am committing no breach in forwarding a copy of this report in toto so that you may understand the background of Allan's life. I am convinced that he is fully repentant, that he is really concerned about the wound to the Church which has been caused here, and is anxious to fulfil his Ministry. His wife has been really wonderful, and will help him both in his personal life and in his work at the Ministry if he is able to continue. I think you need have no fear that he will not play the game or cannot be trusted, though I have warned him, as I think others have, that he must avoid 'occasions of sin' and situations in which he may become 'anonymous', as he did here in an honest endeavour to freelance among some of the wandering and lost youth in this large city. He did this not realising his own weakness."
On 18 July 1977, the Honorary Secretary of the Board of Management of the Home wrote an Annual Report. In it the Honorary Secretary expressed the thanks of the Board of Management to a number of different people "… because without their wonderful support, the home would not be able to continue…". He then included this paragraph: "The families who take our children into their homes for school holidays (one of the most important forms of support that we receive from the community)". Such a statement is consistent with a newspaper article which appeared in the Sawtell Guardian on 17 July 1975. The article was headed "Appeal for Holidays" and included the following: "Miss Jean O'Neill, Matron of the North Coast Children's Home has made an appeal through the churches for people who would be prepared to have a child from the home for the school holidays. The children in the home come mainly from broken homes and are unfamiliar with happy family life. The first consideration in asking for a holiday in a normal home is that they may approach their own adulthood with a healthy idea of how a marriage can work and how happy a home can be. … All that is asked is for a family to invite one of the children and treat them as one of the family for a brief holiday." A contact address is then provided.
In the 1977 Annual Report, the Honorary Secretary also expressed the appreciation of the Matron and of the Management Committee to a number of people. That expression of appreciation included the following statement: "Miss O'Neill has sorely missed the presence of the Reverend Mr. Allan Kitchingman and Mrs. Jan Kitchingman who gave so much encouragement and practical support to her before they were transferred from Lismore to Mullumbimby late last year. Few people would realise just how much their presence, comfort and assistance meant to the Home and to the Matron."
The plaintiff has also put before the Court a number of minutes of various meetings of the Executive of the Home in the period from 1970 to 1979. It is not possible to know if this is a complete set of minutes, although, having regard to the fact that there is regularly a reference to monthly meetings of the Executive, it seems doubtful that a complete set of these minutes has been provided.

[8]

Material Produced After Mr Kitchingman Retired

Mr Kitchingman retired as an Anglican priest in 2000. On 19 April 2002, two years after his retirement, Mr Kitchingman pleaded guilty to five counts of indecent assault on a male person. The counts were each constituted by an offence against s 81 of the Crimes Act. Mr Kitchingman appeared in the Newcastle District Court on 29 July 2002, when he adhered to his pleas of guilty. On 5 August 2002, he was sentenced by Coolahan DCJ to a period of imprisonment which comprised 15 months non-parole, with a balance of term of 15 months.
The sentencing remarks of Coolahan DCJ noted that the offences occurred against a 13-year-old boy who was a resident of the Home. They generally occurred in association with the playing of a musical instrument, and when Mr Kitchingman took a number of boys from the Home to work at a Youth Conference Centre in east Ballina. The group of boys usually left on a Friday afternoon and returned to the Home in Lismore on the following day. On one occasion the victim was taken by Mr Kitchingman, together with other boys, to a restaurant for dinner before returning to the Youth Conference Centre. The offences occurred, generally, at night in the hall of the Youth Conference Centre, where the group slept during their stay overnight. The conduct was described as forming part of a course of conduct involving many more similar incidents towards the same victim over a 12-month period. In the course of the sentencing remarks, part of the content of a report from Dr Bruce Westmore, a forensic psychiatric, about Mr Kitchingman was set out by his Honour.
His Honour said this: "Dr Westmore thought since these offences had come to light the offender had been suffering from an adjustment disorder, with depression and probably anxiety. He said that on the history provided by the offender, however, he was unable to diagnose him as suffering from paedophilia. But he said the history did suggest some long standing psychological difficulties associated with sexual performance and sexual confidence. He said that the offender would qualify for the diagnosis of sexual dysfunction, a lifelong generalised disorder due to a combination of factors. … Dr Westmore said that on his history he did not think that the offender represented a general risk [to the] community and did not think he was a sexual predator as paedophiles are. He said, however, that he would certainly recommend that the offender receive some psychological or psychiatric assistance for his sexual problems."
In June 2014, the Professional Standards Board of the Diocese of Grafton considered the material relating to Mr Kitchingman - in particular, the offences with which he was charged in 2002. It recommended to the then Bishop of Grafton that Mr Kitchingman be deposed from Holy Orders. The Right Reverend Dr Sarah Macneil, the then Bishop of Grafton, acted upon that recommendation, and on 23 June 2014 she deposed him from Holy Orders.

[10]

Principles of Law - Permanent Stay

There is no doubt that this Court has the power to order a permanent stay of proceedings involving claims for damages for historic sexual abuse.
The authorities recognise that, notwithstanding the amendments made in 2016 to the Limitation Act 1969 so as to abolish the existence of any limitation period in respect of such claims, the Supreme Court's statutory power and inherent jurisdiction remains: Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [32]-[38].
Bell P (as his Honour the Chief Justice then was) in Moubarak at [71] said: "From a brace of decisions of the High Court between 1989 and 2006 (Jago; Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 (Spautz); Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 (Walton); Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 (Batistatos)), the following uncontroversial propositions may be derived: (1) The onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant: Spautz at 529 (per Mason CJ, Dawson, Toohey and McHugh JJ); (2) A permanent stay should only be ordered in exceptional circumstances: Jago at 31 (per Mason CJ), 76 (per Gaudron J); Spautz at 529 (per Mason CJ, Dawson, Toohey and McHugh JJ); Walton at 388 (per Mason CJ, Deane and Dawson JJ); (3) A permanent stay should be granted when the interests of the administration of justice so demand: Jago at 30 (per Mason CJ), 74 (Gaudron J); Spautz at 520 (per Mason CJ, Dawson, Toohey and McHugh JJ); Batistatos at [12] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); (4) The categories of cases in which a permanent stay may be ordered are not closed: Jago at 74 (per Gaudron J); Batistatos at [9] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); (5) One category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive: Jago at 74 (per Gaudron J); Walton at 393 (per Mason CJ, Deane and Dawson JJ); (6) The continuation of proceedings may be oppressive if that is their objective effect: Batistatos at [70] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); (7) Proceedings may be oppressive where their effect is 'seriously and unfairly burdensome, prejudicial or damaging': Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197 at 247 (per Deane J); [1988] HCA 32 cited in Jago at 74 (per Gaudron J); Batistatos at [70] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); (8) Proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party: Walton at 393 (per Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); and (9) Proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people: Walton at 393 (per Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ)."
In The Trustees of the Roman Catholic Church the Diocese of Lismore v GLJ [2022] NSWCA 78, Mitchelmore JA (with whom Macfarlan and Brereton JJA agreed) said at [115] that the burden to which Bell P had referred in [71(1)] of Moubarak which fell "squarely" on a defendant included demonstrating that all reasonable enquiries which bear upon the fairness or unfairness of the proceedings had been undertaken. Her Honour relied upon the remarks of Payne JA in Gorman v McKnight [2020] NSWCA 20 at [94].
As the authorities make clear, it is necessary to consider the facts of each case with respect to the application by a party for a permanent stay because the determination of whether the circumstances are exceptional such that the interests of the administration of justice demand a permanent stay can only be determined on a case-by-case basis.

[13]

Vicarious Liability

Insofar as the allegation in paragraph 40 of the Statement of Claim is concerned, namely that the acts and omissions of Mr Kitchingman occurred within the course of his employment, service or agency with the Diocese or the Board of Management, it will be necessary for the plaintiff to show that the carrying out of sexual abuse by Mr Kitchingman, consequent upon him being billeted at the home of Mr and Mrs Kitchingman over the school holidays, occurred within the scope of his duties as a priest in the Diocese of Grafton.
To defend the claim of BRJ, it will be necessary for the Trustees to be able to give instructions about the circumstances giving rise to the billeting of children from the Home generally, and the particular billeting arrangements at the time of when the abuse occurred. Those instructions can only be based on what the material described above showed or else what Mr Kitchingman might have been able to tell them.
In considering the issue of vicarious liability, much will depend upon issues relating to the relationship between Mr Kitchingman and the Home, and the Parish of St Andrew in which it was situated. That is because the identification of a general principal for vicarious liability has "… eluded the common law for a long time": Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 at [44]. It will be necessary to consider whether the approach taken in decided cases provides a solution or a path to solution.
In Prince Alfred, the plurality (French CJ, Kiefel, Bell, Keane and Nettle JJ) said at [80]-[81] this: "80 In cases of the kind here in question, the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability. … [I]t is possible for a criminal offence to be an act for which the apparent performance of employment provides the occasion. Conversely, the fact that employment affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability. … Even so, … , the role given to the employee and the nature of the employee's responsibilities may justify the conclusion that the employment not only provided an opportunity but also was the occasion for the commission of the wrongful act. By way of example, it may be sufficient to hold an employer vicariously liable for a criminal act committed by an employee where, in the commission of that act, the employee used or took advantage of the position in which the employment placed the employee vis-à-vis the victim. 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' to 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."
In drawing attention to these statements in the High Court, I do not overlook the factual issues surrounding the role of Mr Kitchingman as an Anglican priest in the Diocese of Grafton nor do I overlook the issue as to all of the surrounding circumstances involved with the billeting process. That billeting process may have had nothing to do with his direct roles and responsibilities as an Anglican priest of the Diocese. On the other hand, it may be that on examination it appears that it was an expectation placed upon priests of the Diocese to participate in the billeting of children from the Home or that in some other way there was a significant connection between the fact that Mr Kitchingman was an Anglican priest and, regardless of how the billeting came about, that was the relevant position in which he was placed vis-a-vis the plaintiff.
These are all matters which at trial would require careful examination.

[14]

Cross-Defendant's Submissions

It is convenient to commence with the submissions for the cross-defendant, Mr Kitchingman. It was submitted that a careful examination of the pleading and the plaintiff's evidentiary statement indicates that the relevant event of sexual abuse occurred on one occasion only, and then when only the plaintiff and cross-defendant, Mr Kitchingman, were present. The plaintiff's evidentiary statement noted that the sexual abuse occurred at a time when Mrs Kitchingman and another young woman, who was staying with them, had left the house and were not present.
The cross-defendant noted that the plaintiff did not tell anyone about the sexual abuse at any time contemporaneously with its occurrence. He noted that the first person that the plaintiff informed about the abuse was his brother, Peter, in 2018. At paragraph 117 of the plaintiff's statement, he said: "Before Peter I hadn't told anyone what had happened to me and had pretended nothing had happened."
The cross-defendant did not criticise the plaintiff in any way for not informing anyone prior to 2018. He merely drew attention to the fact that the consequence of this disclosure at that time means that there is no corroborative contemporaneous material about the occurrence of the abuse, what in fact happened, or any other detail about it.
The cross-defendant next pointed to the extensive expert evidence about the current mental capacity of Mr Kitchingman and submitted that he has no capacity to respond in any way at all to the Cross-claim brought against him. The cross-defendant submitted that the effect of Mr Kitchingman's diagnosis is that he cannot provide instructions for the conduct of the defence and could not be regarded as giving an accurate account of the facts if he was called as a witness because of his tendency to confabulate and also because he has a clear inability to remember events of significance from the past.
In those circumstances, shortly put: 1. the length of time which has passed since Christmas 1974 / January 1975; 2. the fact that only two people were present who could provide an account of the sexual abuse and that there is no other contemporaneous or corroborative material; and 3. the expert opinions about the cross-defendant's capacity, all combine to demonstrate that any trial of the Cross-claim would be manifestly unfair and would constitute an abuse of the process of the Court.
Finally, the cross-defendant drew attention to the fact that the experts opined (and McLennan DCJ accepted) that such was the cross-defendant's condition, it fulfilled the criteria set out in Presser at 48 and that although such decision referred to the position of an accused in criminal proceedings, it nevertheless had relevance to the considerations of the Court in dealing with the Kitchingman Motion. In so doing, the cross-defendant drew attention to the remarks of Bell P in Moubarak at [108]-[109] where his Honour said: "108 Coherence is a quality that the common law values. An incoherent legal system is one that is apt to undermine respect for the rule of law and bring the administration of justice into disrepute. It would, in my opinion, tend towards incoherence to maintain that what constitutes a fair trial should differ in cases involving identical factual allegations. If the defendant was not fit to face criminal charges in respect of the plaintiff's complaint to police because 'the minimum requirements for a fair trial' … would not be present, it would, in my opinion, offend common sense simultaneously to maintain that the defendant could secure a fair civil trial in relation to identical factual allegations. 109 In my opinion, the primary Judge erred in dismissing the relevance of Presser out of hand. It provides powerful insight into matters going to the very essence of a fair trial, including the ability to give instructions, to decide what defence will be relied on, and to make the defendant's version of facts known to the Court and his counsel."

[15]

Defendant's Submissions

In his submissions, counsel for the Trustees did not challenge the submissions of counsel for the cross-defendant that Mr Kitchingman could not have a fair hearing of the civil claim against him.
Counsel for the Trustees made it plain that if the Court was satisfied that the condition of the cross-defendant was such that he could not contest in any meaningful way the allegation against him that he sexually abused the plaintiff, then in those circumstances the position of the Trustees was identical.
Counsel drew attention to the fact that the critical factual finding upon which the plaintiff's case rested was the fact that sexual abuse in fact occurred. Counsel submitted that the Trustees had no source of information about that other than from BRJ on the one hand and Mr Kitchingman on the other. Any defence which the Trustees could mount involving a contest as to whether the sexual abuse occurred, and therefore whether any cause of action against them existed, could only be determined by the availability of a contest on the facts which necessitated the ability of Mr Kitchingman to give an account of what occurred.
In that respect, counsel submitted that the Trustees were in an identical, if not more disadvantageous, position than the cross-defendant.
Counsel also drew attention to the fact that it seemed that the plaintiff may well seek to rely on evidence which occurred after the abuse was alleged to have been perpetrated on the plaintiff but, nevertheless, involving the cross‑defendant as pointing, by way of tendency evidence, to circumstances which corroborated the account of the plaintiff. Counsel submitted that if such facts were to be relied upon as tendency evidence, then the Trustees' disadvantage and prejudice would increase. That is because the Trustees would not be able to contradict any factual version of those other accounts given by the complainants and, in respect of one of the events giving rise to the relevant tendency evidence (where Mr Kitchingman had pleaded guilty in 2002), the Trustees did not have the opportunity to explore with him what in fact occurred and whether it had any similarity, and if so what, to the events in question in these proceedings.
Finally, the Trustees submitted that it would be fundamentally unfair to them if the proceedings against them brought by the plaintiff were not stayed but the Cross‑claim by them against Mr Kitchingman was stayed because they could not have a fair trial of their claim for indemnity or contribution from Mr Kitchingman whilst being exposed to the claim by the plaintiff.

[16]

Plaintiff's Submissions

The plaintiff submitted that the Court would not grant a permanent stay to the Trustees in respect of the claim which he had brought against them. The plaintiff only addressed the facts relevant to the current mental condition of Mr Kitchingman in the context of the way in which those facts were relevant to the proceedings which only he had brought. He noted that he had not brought proceedings directly against Mr Kitchingman and submitted that the Court had to undertake a separate assessment of whether the Trustees had shown that a trial against them would not be fair.
The plaintiff submitted that although Mr Kitchingman might not be in a position to give instructions to his lawyers for the purpose of conducting his defence to the Cross-claim, the same could not be said of the Trustees. The plaintiff drew attention to the fact that the Trustees were a corporate body and were capable of giving instructions to their appointed lawyers as to the way in which the proceedings ought be conducted, including making any necessary or appropriate admissions or, alternatively, putting in issue any relevant matters.
In support of this submission, the plaintiff pointed to the fact that both the Defence filed in the proceedings and the Cross-claim contained certifications by the lawyer for the Trustees that the Defence had reasonable prospects of success and that the Cross-claim likewise had reasonable prospects of success. Both certificates are said to be based upon "provable facts and a reasonably arguable view of the law".
The plaintiff further submitted that the Court needed to differentiate the mental state of the cross-defendant between the time when proceedings were commenced by the filing of a Statement of Claim on 14 January 2020, when the Defence was filed on 17 April 2020, and about six months later when the Cross-claim was first filed on 20 October 2020.
The plaintiff submitted that the evidence about the state of the cross‑defendant's mental condition in the nine months between when the proceedings were commenced and the Cross-claim was filed in 2020 did not suggest that the Trustees were disadvantaged in their ability to investigate the claim, including by taking a statement from Mr Kitchingman as to what had occurred between him and the plaintiff.
The plaintiff submitted that there was no reason to doubt that, had such steps been taken which would have formed part of the reasonable enquiry obligation on the Trustees during that period, Mr Kitchingman could have given a reasonably accurate account of what had occurred. The plaintiff submitted that the Trustees had failed to make appropriate and timely enquiries and disclosures about the activities of Mr Kitchingman and, accordingly, any prejudice by elapse of time should be borne by them and not the plaintiff.
The plaintiff noted, in particular, that a litigant in his position, acting in accordance with the law as amended by the removal of the limitation period, ought not be deprived of their right to submit a real and genuine controversy to the determination of the Court except in the most exceptional of circumstances when the interests of justice demanded that their right to bring a claim should be prevented: Williams v Spautz (1992) 174 CLR 509 at 519; [1992] HCA 34.
The plaintiff pointed to the public interest in claimants such as himself having the opportunity to present his allegations in court and to seek vindication.
In dealing with the proposition that it was unfair to the Trustees to have a trial of the plaintiff's claim because the cross-defendant could not give evidence and that thereby any trial would be unfair, the plaintiff submitted that the absence of evidence on one important issue, whilst it may be taken to constitute a less than perfect trial, did not mean that a fair trial was not possible. The plaintiff drew attention to the fact that in many cases there may be an absence of a witness or witnesses completely from proceedings or else witnesses whose memory has been lost, and that this will not mean of itself and without more that a fair trial cannot be obtained. The plaintiff noted in its submissions that, at best, any factual account to be given by Mr Kitchingman would be given in no higher capacity than as a witness for the defendant, or perhaps in his own defence of the Cross-claim.
The plaintiff submitted that, having regard to all the material and the existence of the Cross-claim, the Court should conclude that it was highly improbable that the defendants would have called Mr Kitchingman to give evidence in its case and that it would be most unlikely that the defendants would rely on any evidence that Mr Kitchingman gave on the Cross-claim in answer to a claim by the plaintiff.
The plaintiff drew attention to the defendant's records which have been summarised above. In particular, the plaintiff noted records of the conduct of Mr Kitchingman in indecently assaulting a 13-year-old boy in 1975 - for which he was convicted in 2002 - and the allegation of assault, which is said to have emerged in 2018, at, amongst other places, the cross-defendant's home.
Put differently, the plaintiff submitted that: 1. the context and circumstances relevant to the alleged abuse and its consequences were largely admitted by the Trustees; 2. the Trustees' lawyers had certified that the Defence had reasonable prospects of success, there being no suggestion that that assessment had changed; and 3. material existed in the defendant's records which would be admissible, and which was capable of informing the defendant about the likelihood that the plaintiff was abused by the cross-defendant, all combine to demonstrate that insofar as the Trustees were concerned, this was not an exceptional case and that a stay ought not be granted.
Finally, the plaintiff submitted that as a matter of discretion the Motion would be dismissed. The plaintiff pointed to three matters which demonstrated that the discretion should not be exercised in favour of the Trustees. The first was that it was clear from the records of the defendant that in 1968 the Bishop of Grafton had knowledge that the cross-defendant posed a risk to young people - yet he did not act to prevent young people coming under the unsupervised control of Mr Kitchingman. Secondly, the plaintiff submitted that the contents of a report of the Professional Standards Board of the Anglican Diocese of Grafton identified serious matters which gave rise to the question of whether there may be other unknown victims of Mr Kitchingman's abuse, which statements were not followed up by any further investigation.
Finally, the plaintiff submitted that the Trustees had not made all reasonable enquiries relevant to the plaintiff's claim including that they had not made any attempt to interview Mr Kitchingman's wife as to the contextual facts surrounding the abuse of the plaintiff at any time.
The plaintiff submitted that in considering the exercise of the discretion, the Court would also need to weigh up the unfairness to him in circumstances where he brings his claim based on events which have had a profound effect on his life.

[17]

Cross-Claim: Trustees v Kitchingman

The evidence which has been summarised earlier clearly demonstrates that Mr Kitchingman does not have the capacity to give instructions to his solicitors to conduct the defence of the Cross-claim, nor does he have any capacity to give reliable evidence of a reliable account of the central events which have given rise to these proceedings, namely the alleged perpetration of sexual abuse by him on the plaintiff at his private home where the plaintiff was billeted during the Christmas holidays whilst otherwise a resident at the Home.
At no time has Mr Kitchingman, until the service of the Cross-claim upon him, been confronted with the sequence of events alleged by the plaintiff to have occurred. He has never had any opportunity to give his account of events at any time prior to the Cross-claim being served upon him. By that time, he was not able to accurately give any account of his version of the facts and circumstances.
There are only two possible eyewitnesses to the sexual assault, namely, the plaintiff and Mr Kitchingman. There are no documents currently in existence which bear upon the allegations which were not the subject of any contemporaneous complaint. Mr Kitchingman is simply unable to confront the allegations.
The position in which the cross-defendant finds himself is not of his own making in the sense that he has not done anything consciously to put himself in a position where he cannot give instructions or accurately recount events. As well, the finding by McLennan DCJ and the conclusion of the Mental Health Review Tribunal have reached the conclusion that Mr Kitchingman is not fit to be tried. In so doing, they have applied the criteria in Presser. I do not translate those criteria directly into this civil context. Nevertheless, I am satisfied that those findings have relevance in the consideration of the circumstances required for a fair trial of the civil proceedings. It would be a surprising finding that a civil hearing would not be unfair when dealing with an allegation of sexual abuse, but that a criminal trial for a similar allegation could not proceed because it was unfair in the circumstances here where the unfairness arises because, by reason of his diminished mental capacity, a party cannot understand or give instructions for the conduct of a trial.
Whilst, as I have said, I accept that the finding of a lack of fitness to stand trial does not directly relate to the same circumstances recounted by the plaintiff as constituting the sexual abuse, nevertheless, having regard to the basis identified for the finding that Mr Kitchingman was not fit to stand trial, and the general similarity of the circumstances (including the age of the complaints), I am satisfied that the fact that the cross-defendant is not fit to stand trial in a criminal jurisdiction is of relevance to any conclusion here.
All of these matters combine to mean, in my view, that the facts and circumstances are sufficiently persuasive for the Court to order the exceptional relief of a permanent stay of the Cross-claim by the Trustees against Mr Kitchingman.

[18]

Plaintiff v Trustees

The Trustees Motion seeks the same relief.
It is clear that the Trustees are capable of giving instructions to their lawyers. The contrary was not asserted. However, the factors which have led to the grant of a permanent stay on Mr Kitchingman's application have importance in the consideration of the Trustees Motion. In the first place, the claim against the Trustees is based upon the identical sexual assault which is the subject of the Cross-claim. That is an event which occurred about 45 years before proceedings were commenced. The only two eyewitnesses to the assault were the plaintiff and Mr Kitchingman. The Trustees do not have available to them any documents about the alleged sexual assault other than those produced in the course of these proceedings. There is nothing in their records which touches upon the occurrence of the sexual assault, and only the barest detail about the fact that the plaintiff was billeted to the home of Mr and Mrs Kitchingman during a holiday period. The circumstances of that billeting, how the plaintiff was allocated to Mr and Mrs Kitchingman, what other available billeting arrangements (if any) there were and what other steps (if any) were taken with respect to that billeting, are simply unknown and at this far remove unknowable to the Trustees.
I accept that the evidence shows that, prior to Mr Kitchingman's transfer to the Diocese of Grafton, the Bishop of Grafton was on notice that Mr Kitchingman had been dealt with for an offence of indecent assault, in respect of which he was placed on a bond to be of good behaviour. That occurred in 1968, and by the time of, and certainly for a number of years before, the assault on the plaintiff, there was no suggestion that there had been any breach by Mr Kitchingman of that good behaviour bond.
Further matters which have come to light with respect to Mr Kitchingman's conduct did not include any reference to the plaintiff nor did they include any reference to abuse having taken place in circumstances similar to those described by the plaintiff. To the extent that any of these may be relied upon as constituting tendency evidence in support of the plaintiff's allegations against the Trustees arising from Mr Kitchingman's behaviour, the Trustees are disadvantaged because of their inability to obtain independently any material to confront the factual bases of these matters.
It seems to me that, contrary to the arguments of counsel for the plaintiff, the Trustees are in fact in a most disadvantageous position in terms of being the subject of a fair trial. They are entirely ignorant about the allegations made by the plaintiff against Mr Kitchingman themselves and there does not exist any means by which the conduct of the trial could relieve the consequences of the effect of Mr Kitchingman's mental incapacity, nor the absence of records nor the availability of any witness who can testify to the circumstances of and surrounding the alleged abuse.
I do not accept that there has been any failure by the Trustees to undertake reasonable enquiries and investigations in circumstances where the alleged perpetrator, as here, was not part of the Diocese at the time the proceedings were commenced - he had by then retired as a priest of the Diocese and had been deposed from Holy Orders in 2014. It was not as though the Trustees could call upon the cross-defendant as an employee to give an account of events. Nor was it the case that the Trustees could call upon the cross‑defendant as a former member to give an account of events. Particularly is that so because, at the time these proceedings were commenced and served on the Trustees, Mr Kitchingman was the subject of criminal proceedings arising out of conduct as a priest in the Diocese of Grafton and would not be expected to readily assist the Trustees in respect of this civil claim.
As well, as is apparent from the Defence of the Trustees, in circumstances applicable here where they had no knowledge of the events in question, there was a real likelihood that they would wish to seek indemnity and/or contribution from Mr Kitchingman. There is no reason to think that Mrs Kitchingman would be in any different position to that of her husband i.e., even assuming that she could give some account of facts which might be relevant. She has not done so as yet.
The defendant's submissions raise the issue of whether, because I have permanently stayed the Cross-claim, the unavailability to bring that Cross-claim is a factor to be considered in determining whether to grant a permanent stay. In my view, it is.
It is well-established that, in the context of applications to commence proceedings out of time, the inability to bring a cross-claim, which would have been available had the proceedings been commenced within time, is a form of prejudice to be taken into account in determining the application, so long as it amounts to "significant" prejudice, such that the loss of rights against third parties are "viable and realistic" and not merely "fanciful or theoretical"; Gallagher Bassett Services NSW Pty Ltd v Murdock (2013) 86 NSWLR 13; [2013] NSWCA 386 at [28] citing Creevey v Barrois [2005] NSWCA 264 at [56] per Basten JA; GIO General Ltd v Love [2009] NSWCA 269 at [40]; see also Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254 at [41].
It would be incongruous of the law to recognise the "significant prejudice" of the unavailability of a cross-claim in the context described above but to deny the recognition of such a similar prejudice in a context such as this case. That is so because the two types of application "raise similar issues": see Weston v Publishing & Broadcasting Ltd [2011] NSWSC 433; 83 ACSR 206 at [237]‑[245].
The "significant prejudice" which may flow from the inability of the Trustees to bring the Cross-claim may amount to something "seriously and unfairly burdensome, prejudicial or damaging" and thus "oppressive", in the sense those terms are used in Moubarak (at [71]) and the related cases.
In this case, however, I am not persuaded that the unavailability of the Cross-claim amounts to "significant prejudice" which should be given any weight in determining the Trustees Motion. That is because I cannot be sure that it was a "viable and realistic" and not merely "fanciful or theoretical" cross-claim, partly because, as it seems to me, any judgment against the cross-defendant would likely be worthless: cf Mabbett v Josef & Sons Contracting Pty Ltd [2006] NSWSC 1452 at [121].
Although I do not put any weight in the context of this case on the fact that the Cross-claim has been permanently stayed and is an event of potential disadvantage to the Trustees, I am abundantly satisfied that the Trustees are entitled to the exceptional relief by way of a permanent stay.
The Trustees do not have sufficient facts or information or knowledge that would permit them to participate in a contest against the plaintiff about whether a sexual assault, or sexual abuse of the kind alleged, occurred. Nor are they in a position, in the absence of any material in their possession to which reference has been made, of providing any explanation at all as to the circumstances surrounding the billeting of the plaintiff with Mr and Mrs Kitchingman when the abuse occurred.
They could not meet an allegation that they were vicariously liable for the criminal conduct of Mr Kitchingman, nor could they meet an allegation that there had been a systemic failure with respect to Mr Kitchingman's home being used as a billet for the plaintiff - which is one of the two causes of action relied upon.
If the plaintiff sought to lead tendency evidence, that further contest would also be manifestly unfair because the Trustees could not meet and deal with it.
Any trial of BRJ's claim against the Trustees would be one-sided and would be unable to be realistically contested in any substantial way by the Trustees. It may look like a trial to an uninformed observer, but it would be nothing "… more than a formal enactment of the process of hearing and determining the plaintiff's claim": Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20 at [80].
Counsel for the plaintiff submitted that as the Court had a discretion to grant a stay, and for the reasons earlier outlined in [109] above, the circumstances did not warrant the Court's exercise of discretion to grant the stay, the Motion should be dismissed.
The use of the term "discretion" in the submission about granting a stay, is open to misunderstanding. Whilst it is clear that the Court's power to grant a stay is not mandatory and, in that sense, can be described as discretionary, to me that does not mean that the Court has a discretion to refuse to grant a permanent stay where it is satisfied that any hearing of the proceedings would be manifestly unfair, and that the Trustees could not have a fair trial. That is because to the extent that there cannot be a fair trial, the proceedings are an abuse of process and do not serve the interests of the administration of justice.
Even if the grant of a stay was discretionary in the true sense of that word, the matters advanced by the plaintiff's counsel would not tell against the exercise of the discretion. The fact that there may be material available to the Trustees which may be capable of informing them that they should conclude by inference that Mr Kitchingman engaged in the sexual abuse against the plaintiff is not a reason to refuse the relief. Rather, it is a circumstance which emphasises the unfairness of the proceedings i.e., that the Trustees would have to infer, based on material, that Mr Kitchingman engaged in the criminal conduct of sexually abusing the plaintiff. That is not something which the Trustees ought be required to do by indirect process of inference from some material other than that which deals with the facts of this case. Nor is it to the point that the Trustees were able to admit some of the facts and circumstances surrounding the pleading.
Nor is the exercise of discretion, assuming one exists in the traditional sense, to be influenced by the knowledge of the Bishop of Grafton that Mr Kitchingman may have posed a risk to young people based upon the conviction in 1968 of indecent assault. I do not accept that the Trustees were obliged to engage in any further investigation of the conduct of Mr Kitchingman in 2014, and that their failure to do so is a matter relevant to the exercise of the discretion. The fact is, as I have determined, these proceedings would constitute an abuse of process in that the Trustees cannot have a fair trial of the plaintiff's allegation and, accordingly, the interests of the administration of justice are served by making an order for the permanent stay of the claim against them.

BRJ v The Corporate Trustees of The Diocese of Grafton

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Cases Cited (24)