Fields v Trustees of the Marist Brothers

Supreme Court of NSW|2021-05-11|Before: Garling J

Judgment

The plaintiff, Paul Edwards Fields, commenced proceedings against the defendant, the Trustees of the Marist Brothers, on 26 July 2019, claiming damages for sexual abuse which he initially alleged occurred in 1966, and on one occasion in 1967, whilst he was a student at St Joseph's School ("the School") in Lismore.
The defendant ("the Trustees") accepts that it is the proper defendant to meet any claims against the then-unincorporated association of the Marist Brothers, which conducted the School at the time of the alleged abuse. It will be convenient to refer to the tortfeasor as the School in these reasons.
The Trustees filed a Defence on 17 October 2019.
On 18 November 2020, the Trustees filed a Notice of Motion in which they sought the following relief: "1. That the allegations raised by the plaintiff in his Statement of Claim filed 26 July 2019 of sexual abuse by Brother Celcus, be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005; alternatively, 2. That the allegations raised by the plaintiff in his Statement of Claim filed 26 July 2019 of sexual abuse by Brother Celcus, be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005; 3. The plaintiff to pay the defendant's costs of the Motion."

Statement of Claim

The Statement of Claim was filed on 26 July 2019.
It pleads that the plaintiff was a day pupil at the School in Lismore, from 1966 to 1968 and that he was sexually abused by Brother Celcus (initially incorrectly identified by the name "Selsius" in the pleadings) during 1966 and 1967.
The pleaded abuse by Brother Celcus in 1966 is alleged to have occurred in the classroom during school hours whilst other students were apparently also present, and also outside of class hours but still in the classroom. The abuse pleaded in 1967 is alleged to have taken place on a single occasion at the Lismore Catholic Carnival, participation in which is alleged to be a part of the School's activities.
Arising from the pleaded abuse, two causes of action are alleged: 1. negligence against the School for inadequate systems to address and manage the foreseeable risk of harm pleaded to exist with respect to the consequences of the sexual abuse of a student; and 2. vicarious liability of the School for the conduct of Brother Celcus, which is alleged to have occurred within the course of his employment at the School.
The pleading of vicarious liability of the School for the sexual abuse by Brother Celcus is based upon the allegation that the School: "… invested in and placed Brother Celcus 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."
It can be seen that this pleading mimics, without any content specific to the School or Brother Celcus' position at the School, the words used in [81] of Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 ("Prince Alfred"). I note that the facts and circumstances in Prince Alfred are quite different from those alleged here, albeit that in both cases the abuse occurred in a school setting.
It is alleged that the sexual abuse of the plaintiff by Brother Celcus occurred: 1. whilst he was performing his duties as a teacher; 2. whilst he was supervising the plaintiff; and 3. whilst he was acting "in loco parentis".
The plaintiff pleads that the School was in breach of its duty in the following ways: "(a) failing to initiate and maintain any or any adequate system to protect the plaintiff from the risk of sexual abuse while he was under its care, control and supervision; (b) by itself and by its servant Brother Celcus failing to supervise or adequately supervise the plaintiff while the plaintiff was under its care; (c) by its servant Brother Celcus, sexually abusing the plaintiff; (d) failing to manage or adequately manage the risk of the plaintiff being sexually abused by teachers at the school; (e) failing to supervise or adequately supervise the plaintiff; (f) failing to supervise or adequately supervise Brother Celcus; (g) failing to train or adequately train teachers at the school including Brother Celcus, about the risks of child sexual abuse; (h) failing to institute and maintain any or any adequate system or program to educate children at the school about their right not to be sexually abused and report such abuse to a designated teacher, parent or police; and (i) failing to exercise due skill and care in the management of the school."
It can be seen that these particulars, leaving aside particular (c) which pleads that the fact of the sexual abuse by Brother Celcus was itself a breach of a duty of care, can be grouped in this way: 1. a failure in the procedures for the proper management of the School including a failure to adequately train teachers about the risks of sexual abuse; 2. a failure to protect the plaintiff from the occurrence of sexual abuse, because no, or no adequate, system existed for such protection, and the risk of sexual abuse was not managed; 3. a failure of education programs which taught children about the right not to be sexually abused, and the need to report any such abuse to a designated teacher, parent or police; and 4. a failure to supervise the plaintiff and Brother Celcus whilst the plaintiff was under the care of the School.
The issues which come to trial must necessarily fall within these parameters of the Statement of Claim. The plaintiff's pleading also dictates the extent of the investigations necessary to be made by the Trustees to address and meet the claim.

Defence

The Defence, which was filed on 17 October 2019, makes clear that whilst some matters can be admitted, largely of a formal or systemic kind, other facts and matters cannot be either admitted or else are denied.
There is no issue as to the following matters: 1. the identity of the defendant as the proper party to the proceedings; 2. that the defendant is legally liable for any cause of action proved against the Marist Brothers who conducted the School; 3. that the plaintiff attended the school in 1966, and that Brother Celcus (whose non-religious name was Frank Fahey) was a teacher at the school in that year; and 4. that the School owed the plaintiff a duty of care.
The defendant specifically denies: 1. that Brother Celcus was a teacher at the School in 1967; 2. that the nature and extent of the duty of care which it admits that it owes to the plaintiff extends to preventing criminal conduct or unauthorised behaviour on the part of Brother Celcus; and 3. that the plaintiff is entitled to aggravated or exemplary damages.
The balance of the Defence puts in issue by non-admission the great bulk of the pleading.

Legal Principles

It is appropriate to identify the legal principles applicable both to the liability of a school authority for sexual abuse of a student, and also those applicable to the consideration of whether proceedings should be permanently stayed.

Liability for Sexual Abuse

As noted above, the plaintiff alleges direct liability against the School for its fault which caused or materially contributed to the sexual abuse. He also alleges that the School is vicariously liable for the criminal conduct of Brother Celcus.
It is useful to commence an outline of the relevant principles of law with a reminder of the remarks of Gleeson CJ in New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [1] ("Lepore"): "If a teacher employed by a school authority sexually abuses a pupil, is the school authority liable in damages to the pupil? No one suggests that the answer is 'No, never'. In Australia, at least until recently, an answer 'Yes always' would also have been surprising. More information would have been required."
Because neither answer is always and obviously correct, attention must be paid to the particular facts and relationships which have given rise to the abuse and the claims of legal responsibility for such criminal conduct.

Vicarious Liability

Vicarious liability was considered by the High Court of Australia in Prince Alfred. The particular issue which fell for consideration was the allegation of vicarious liability of Prince Alfred College for sexual abuse carried out upon a student by a staff member in the boarding accommodation facility.
In the judgment of the plurality (French CJ, Kiefel, Bell, Keane and Nettle JJ), their Honours dealt with the principles relating to vicarious liability. At [39] their Honours said: "Vicarious liability is imposed despite the employer not itself being at fault. Common law courts have struggled to identify a coherent basis for identifying the circumstances in which an employer should be held vicariously liable for negligent acts of an employee, let alone for intentional, criminal acts."
After considering a range of authorities both in Australia and in other jurisdictions, their Honours returned to the issue, at [80] and said: "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. … 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."
At [81], their Honours identified one relevant approach saying: "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-a-vis the victim. In determining whether the apparent performance of such a role may be said to give the 'occasion' for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable."
The particular case with which their Honours were concerned was a perpetrator who was engaged in the role of a Housemaster at a boarding school, and the duties which he was given to fulfil as part of his role. This led their Honours to describe the relevant approach in this way at [84]: "… The relevant approach requires a careful examination of the role that the [College] actually assigned to housemasters, and the position in which [the perpetrator] was thereby placed vis-à-vis the respondent and the other children."
The remarks of Gageler and Gordon JJ are particularly pertinent to the issue being considered in this application. At [128], they said: "the course of decisions in this Court … reveals that decisions concerning vicarious liability for intentional wrongdoing are particularly fact specific." (emphasis added)
It is clear that it is only by the identification of these principles that, if it becomes necessary, a determination can be made as to whether a defendant, after a very long period of time, can plead a defence and have a fair trial. In Prince Alfred, an extension of time was not granted to a plaintiff because of inter alia the delay in bringing proceedings. The High Court upheld that refusal to grant the extension of time to bring the claim.

Tortious Liability

In The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 ("Trinity Grammar"), the Court of Appeal discussed the principles applicable to the liability of a school authority to a pupil where allegations of sexual abuse occurred. Bathurst CJ (with whom Payne JA and Simpson AJA agreed) said: "40. It is unnecessary in considering this question to go beyond the two most recent decisions of the High Court on these issues, State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 ('Lepore') and Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 ('Prince Alfred College'). 41. In Lepore a majority of the Court held that the liability of a school authority did not extend to intentional criminal conduct against a pupil by a teacher employed by the authority. The plaintiff brought an action claiming damages for personal injury suffered whilst a pupil at a school controlled by the State. The plaintiff alleged negligence against the State. However, there were uncontested findings that the State was not negligent in failing to have a sufficient system of supervision of the teacher or failing to supervise him properly. A majority of the Court of Appeal accepted that the State owed a non-delegable duty of care to ensure that pupils are not injured physically by an employed teacher, irrespective of whether it acted negligently or intentionally. 42. Gleeson CJ accepted at [2] that the legal responsibility of the school authority included a duty to take reasonable care for the safety of pupils and that there may be cases where the sexual abuse is related to a failure to take such care, giving as examples negligence in the employment of a person or inadequate supervision of staff. However, he concluded at [38]-[39] that there was 'no reason, either in principle or in authority, to treat the existence of a non-delegable duty as having the consequences held by the New South Wales Court of Appeal'. 43. Gaudron J in reaching a similar conclusion emphasised at [105] that 'to describe the duty of a school authority as non-delegable is not to identify a duty that extends beyond taking reasonable care to avoid a foreseeable risk of injury'. Gummow and Hayne JJ reached a similar conclusion at [265]-[270], as did Kirby J at [291]. 44. It follows that for the respondent to succeed on the basis of a non‑delegable duty, it will be necessary for him to show that Trinity breached its duty to take reasonable care for his safety by, for example, not taking reasonable care in employing [the teacher] or supervising his activities. In recognition of this fact, the respondent has particularised a large number of matters in support of the allegation that Trinity failed to take reasonable care for the safety of its students, including negligence in the engagement of [the teacher], a failure to supervise him and ... Needless to say these matters involve a consideration of the manner in which Trinity operated at the time. 45. In Prince Alfred College the High Court (French CJ, Kiefel, Bell, Keane and Nettle JJ) after extensive consideration of the authorities dealing with the vicarious liability of employers in cases of this nature, laid down the following principles: … 46. It should be noted that those passages emphasised the necessity of a careful examination of the role Prince Alfred College actually assigned to housemasters. The importance of the factual inquiry was also emphasised by Gageler and Gordon JJ at [125]-[126]. 47. Further, although Gageler and Gordon JJ stated at [130]-[131] that applications of the approach approved by the plurality 'will develop case by case', this application should be considered on the basis that what was said by the plurality in the paragraphs cited is the approach to be taken in determining the scope of the inquiry Trinity will be required to undertake in seeking to defend the claim and its consequent ability or inability to do so."

Permanent Stay of Proceedings

It is also necessary to identify the legal principles applicable to the grant of a permanent stay.
In 2016, amendments were made to the Limitation Act 1969 (NSW) which, so far as is relevant to these proceedings by insertion of s 6A, abolished the limitation period in relation to civil claims for damages for sexual abuse.
Section 6A(6) of the Limitation Act preserves the Supreme Court's inherent jurisdiction. A note is added at the end of the section which in part reads: "… this section does not limit a court's power to… permanently stay proceedings where the lapse of time [means] that a fair trial is not possible".
The judgment of in the Court of Appeal in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [32]-[38] ("Moubarak") demonstrates that the amendments did not and do not have the effect of preventing a defendant from seeking a permanent stay of proceedings brought many years after the events the subject of the claim, on the basis that the proceedings amount to an abuse of process due to the passage of time with implications for the availability of a fair trial.
Bell P (as his Honour the Chief Justice then was) in Moubarak at [68]-[71] said: "68. Section 67 of the Civil Procedure Act provides that '[s]ubject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.' … 71. 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)."
It is appropriate to refer to what was said by Bryson JA (with whom Mason P and Giles JA agreed) in Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20: "80. … Delay is not what the Limitation Act 1969 authorises, literally or in substance. It operates in quite another way, by preventing proceedings being brought after prescribed times, irrespective of whether or not the proceedings can be fairly adjudicated. … The present case is one at the extremes, as almost three decades passed before the proceedings were commenced and four decades will have passed before the proceedings ever go to trial. The Limitation Act 1969 cannot in my view close the Court's eyes to the practical inability of reaching a decision based on any real understanding of the facts, and the practical impossibility of giving the defendants any real opportunity to participate in the hearing, to contest them or, if it should be right to do so, to admit liability on an informed basis. No more than a formal enactment of the process of hearing and determining the plaintiff's claim could take place; it cannot be expected that the process would be just."
This passage was quoted with approval by the plurality judgment in the High Court at [54]: Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 ("Batistatos").
The Court of Appeal most recently approved, and described as "well settled", these principles in The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 ("GLJ") at [95], [115].
As Bell P concluded (at [87]) in Moubarak: "The consequences of a lengthy passage of time between the events giving rise to a claim and its resolution may, as the foregoing discussion illustrates, generate unfairness ... As such, it may feed into an analysis of the availability or otherwise of a fair trial and the circumstances in which such unfairness may warrant a permanent stay of proceedings."
Bell P discussed three further decisions, between 2017 and 2018, in which stays had either been granted or refused. He referred to the decisions to demonstrate the point that decisions in relation to the making of a permanent stay of proceedings necessarily turn heavily upon the facts of a particular case.
Accordingly, it is necessary to turn now to the facts put before the Court in this case.

Relevant Facts

The plaintiff has provided two written statements in support of his case. The first is dated 30 October 2018 ("the first statement") and the second is dated 29 October 2020 ("the second statement"). For the purpose of this application, it is appropriate to assume that the contents of these statements set out the factual material upon which the plaintiff will rely to prove his case.
In the first statement the plaintiff records that he attended "Marist Brothers Lismore" at the beginning of 1966, when he was in Year 6 in the primary school, and that he remained at the school until the beginning of 1968, which was the beginning of Second Form in the high school. He says that Brother Celcus was one of his teachers in both 1966 and 1967 and he describes the abuse as having occurred during both of those years. The abuse is described as having occurred during class time whilst he sat at his desk and then on occasions when he was summoned or required by Brother Celcus to stay back after class. He then describes abuse in the classroom when no-one was around. The plaintiff records that this happened to him about three times a week.
The plaintiff describes a particular act of abuse which he says occurred on one occasion only in 1967 at the "Lismore Catholic Carnival". He stated: "23. … The carnival was an annual Christmas event. I was part of the school choir and the choir was required to go to sing at the carnival. The whole of the community attended. The teachers including the brothers all went. They were there to supervise the children and sometimes worked on the stalls."
The plaintiff then described the abuse which occurred during that Carnival by reference to it taking place in an area near what he describes at the "Bocce Club". Later that evening, the plaintiff records that he told his older brother, Pat, about the abuse by Brother Celcus.
The plaintiff recorded his belief that his brother, Pat, confronted the perpetrator. The plaintiff also noted that his brother, Pat, told his father about the incident. The plaintiff was then questioned by his father about what had happened and, having told his father, his father did not believe him. The plaintiff then recorded this: "30. … It completely destroyed my relationship with my father. After that, I would not go into the house. I would sleep under the house or in the barn."
He went on to say this: "31. By the beginning of 1968 I hated school so much that all I wanted to do was to get into so much trouble so that I would get kicked out. 32. On one occasion I was sent to the office to get the cane. Whilst I was at the office me and another boy saw the pay packet of one of the office ladies. We decided to steal it. I took the pay packet home and the next morning I hid it in the hedges near the church. 33. The School worked out that I must have been involved and my parents were called up to the school. I owned up to having stolen it. My friend and I had spent $3 and my parents had to repay the $3. 34. I was then expelled from the school and sent to Richmond River High School. I did not finish the year there."
It is to be observed that the sequence of events just described has a direct and close temporal link to the account of the single occasion of sexual abuse alleged to be perpetrated at the Catholic Carnival in late 1967.
The plaintiff's second statement, which was filed about a year after the Defence was filed, contains some more detail about some of the events to which I have earlier made reference. However, it does not change the substance of them.
There is, however, one significant change which reflects the pleading in the Defence that Brother Celcus was not a teacher at the School in 1967. The change made is to the year in which the plaintiff alleged that he was abused at the Catholic Carnival from 1967 to 1966. However, there is no change made to the linking of the subsequent series of events to a date one year earlier.
Without any further amendment, the sequence of a single occasion of abuse at the end of 1966 rather than 1967 does not logically or comfortably fit with the plaintiff falling out with his father and sleeping either under the house or in the barn. Nor is there any direct connection with the description which the plaintiff gives of his dislike of the School leading to his leaving the School at the start of the school term in 1968.
There may well be an entirely rational explanation for what appears to be a difference of real significance between the two statements. Without such explanation, an issue will be likely to arise as to the accuracy and reliability of the plaintiff's memory of these events. What this discrepancy demonstrates is that the defendant, in order to prepare its defence to the claim, would need to identify other events of those years either at the School or else in Lismore against which the plaintiff's recollections can be tested, and to have available contemporaneous documents such as school reports, conduct reports, or records relating to the plaintiff being expelled from the School to enable it to be in an adequate position to conduct its defence, and to test the truthfulness and accuracy of the plaintiff's account of events.
It is appropriate to record that the plaintiff was born in April 1954 and, accordingly, was 11 years old at the start of 1966 and 13 years old at the start of 1968. His account of the abuse comes from a time when he was 11 years old, which is 56 years ago.
It is to be observed that the abuse alleged by the plaintiff was not said to have been witnessed by any identified individual. The statements of the other individuals which have been served and which are to be relied upon as tendency evidence, discussed below, do not give evidence of any knowledge of Brother Celcus sexually abusing the plaintiff either directly, because such abuse or any physical contact was observed, or indirectly, because of any remark made to them by either the plaintiff or another student who had witnessed what had happened to the plaintiff.
In addition to the evidence from the plaintiff himself, the plaintiff's lawyers have served a Notice of Intention to Adduce Tendency Evidence. The tendency evidence is to be drawn from the statements of seven individuals - each of whom is said to have been a student at the School whilst Brother Celcus was a teacher there, in and around 1965 and 1966.
The statement of each student records the details of their interaction with Brother Celcus which the plaintiff says gives rise to the existence of the following tendencies on the part of Brother Celcus: "That while he was a teacher at [the School] Brother Celcus had the following particular state of mind and to act in the following particular ways: 1. To have a sexual interest in adolescent male students at [the School]; 2. To exploit his position as a teacher so as to assert his authority to enable him to act on his sexual interest with adolescent male students at [the School]; 3. To seek out opportunities to isolate adolescent males at [the School] to enable him to groom those persons by engaging in sexualised discussions and to have sexual contact with those adolescent male students and that, at the time, he had a state of mind whereby he was sexually attracted to the plaintiff and other adolescent males."
The Notice also provides the basis of the relevance of such tendency in the following terms: "The tendency evidence sought to be adduced bears upon the facts in issue in the plaintiff's claim including whether: Brother Celcus sexually abused the plaintiff; and the nature of the interactions between Brother Celcus and the plaintiff."
On the assumption that the tendency evidence is admissible, it goes to establish one or more circumstances which the Court will be asked to take into account in deciding whether the plaintiff has proved his case. Tendency evidence of this kind, if it is established, cannot assist a defendant's case. Accordingly, to prepare for any hearing, it will be necessary for the defendant to attempt to investigate each of the claims and accounts of the tendency witnesses to determine the reliability and accuracy of their uncorroborated accounts of the conduct of Brother Celcus, when it occurred, the circumstances in which it occurred, and whether such conduct had the tendency asserted.
The effect of the plaintiff proceeding in this way is that in terms of the preparation for any hearing, the defendant is confronted with the need to investigate eight separate claims of sexual abuse by Brother Celcus which are said to have taken place in 1965 and 1966, in circumstances where none of the tendency evidence is said to have been witnessed at the time it occurred nor corroborated by any independent evidence.

Investigation by the Defendant

Since receiving this claim, the defendant has undertaken extensive investigations including seeking out any contemporaneous records. I am satisfied that those investigations have established the following facts, matters and circumstances.
Brother Celcus was the teacher in charge of the primary section of the School from 1964 to 1966. In 1967 he was transferred to Marist Brothers High Maitland where he remained as principal of the primary school until December 1970. Brother Celcus did not teach at the School at any time in 1967. He died on 27 September 2000.
A note in the documents produced to the plaintiff by the Trustees, which was made on 11 June 2014, recorded that the Principal of the School in 1965, "Brother Ignatius", had died. The date of his death is not recorded.
The Marist Brothers have no record of having received any complaint or other notification from, or on behalf of, or about, the plaintiff with respect to Brother Celcus until August 2018.

School Records

The School, which is now called Trinity College, has no records at all relating to the plaintiff except for an Admission Register showing his date of entry into, and departure from, the School. Apparently, nearly all the School's records were destroyed by a major flood in Lismore in 1974. Only a very few remain. None, other than the extract from the Admission Reports, makes any mention of the plaintiff. The records which do remain do not cast any light upon any of the facts, matters and circumstances which surround or are relevant to the plaintiff's claim.
The other two schools in the Lismore area at which the plaintiff attended before and after attending the School have no records at all of the plaintiff's attendance at these schools.

Complaint History

The records of the history of complaints of sexual abuse held by the Marist Brothers with respect to Brother Celcus shows that prior to the plaintiff's complaint being received in 2018: 1. two complaints about his conduct at the School had been received on behalf of three former students from two separate firms of solicitors. They alleged sexual abuse during 1965 but were received respectively on 1 November 2002 and 27 January 2015; 2. a complaint was received on 15 May 1997 about inappropriate conduct on the part of Brother Celcus during 1996, whilst he was in Cairns; and 3. a complaint was received in 1996 about his conduct whilst he was at the Marist Brothers school at Maitland in 1967-1968.
The complaints arising from the School were first received after Brother Celcus had died. As will be apparent from the consideration below, the other two complaints referred to in [67(b)] and [67(c)] above were received before he died. But there were no details outlining any specific conduct (including sexual abuse) with respect to Brother Celcus whilst at Marist Brothers Maitland that were received until 2001, which was after Brother Celcus died.
Information provided by the Marist Brothers to NSW Police, through the medium of the Professional Standards Office, recorded some details of the complaint received on 15 May 1997. The inappropriate conduct was recorded as alleged to have occurred during 1996 at St Augustine's College, Cairns in Queensland where Brother Celcus held the role of school counsellor. The complaint recorded that the conduct was said to have occurred in the course of a number of counselling sessions. It was said to have involved physical touching by the holding of hands, sitting with knees touching and placing his hand on the knee of the student. No physical or sexual abuse is said to have occurred. The age of the complainant is not specifically recorded.
The complaint received about this conduct on the part of Brother Celcus was the subject of an independent inquiry initiated by the Marist Brothers in 1997 and undertaken by a clinical psychologist. The author undertook a number of interviews including with the complainant and his mother. In the course of those interviews, the independent psychologist's report records that both the complainant and his mother were "… clear … that no overt sexual touching or approach was made" by Brother Celcus. Brother Celcus, when interviewed, denied any inappropriate conduct on his part. The report also records that neither the complainant nor his mother thought any "further action involving external agencies is necessary …". It is clear from that report that there were a number of other issues concerning the claimant and his treatment at St Augustines in Cairns which did not involve Brother Celcus in any way. After the report was received, no further investigations into the conduct of Brother Celcus were undertaken. None were warranted having regard to the nature of the complaint and the contents of the report.
None of the material referable to this complaint is of any relevance to the current proceedings. The conduct complained of involved no allegations of sexual abuse or sexual misconduct. The conduct occurred about 30 years after the conduct alleged by the plaintiff. It happened at an entirely different location. The complaint was also investigated at a time when the Marist Brothers did not know of the plaintiff's allegations which could not have been investigated at that time by them.
Prior to the death of Brother Celcus, a former student at the Marist Brothers Maitland school wrote an undated letter (which was received in April 1996) to Brother Celcus. The letter first came to the attention of the Provincial of the Marist Brothers. Having read it, he sent it to Brother Celcus. It must be said that the terms of the letter were elliptical and opaque to the reader. In relevant part the letter said: "I have been advised … to make contact with you regarding the events that occurred at the Maitland Marist Brothers Primary School 6th class and during the early part of 1st Year high school, while you were the Principal of the junior school. You would no doubt recall these events during the 1966-1967 period while I was in my 10-11 year age. … I expect to hear from you in the very near future."
I note that Brother Celcus did not teach at Maitland until 1967. He was in Lismore at the School in 1966.
Brother Celcus handwrote a reply on 19 May 1996, which was sent to the former student. He sent a copy of it to the Provincial. In relevant part, it said: "Your letter only reached me last week. … My Provincial Superior read the letter. We have since discussed the contents. … I am honestly unaware of what you are saying. To the best of my knowledge I have tried to be fair and show dignity to all of my pupils. My Provincial and I would therefore like you to be more precise."
No further correspondence was received from this former student prior to the death of Brother Celcus. Nothing more was heard from him for about five and a half years. The former pupil was next in contact with the Marist Brothers when he wrote a lengthy letter on 7 November 2001 about what happened to him when he was a student at Maitland Marist Brothers. In that letter, he accepted that his 1996 letter was "slightly obscure in its content".
The Provincial of the time wrote back to him, informing him that Brother Celcus had died in September 2000. After a further exchange of correspondence in February 2002, the Provincial again wrote to the former student suggesting that he may wish to consider pursing his claim through the "Roman Catholic Church Towards Healing Protocol".
A note in the relevant file of 11 May 2006 indicated that the matter had been reviewed and that nothing more had been heard from the former student.
The content of the letter received in 1996 was obviously discussed between the Provincial Superior and Brother Celcus. Equally, the response from Brother Celcus suggests that his Provincial Superior did not feel able to investigate the matter in the absence of more details of what was alleged to have occurred at Marist Brothers Maitland. That was an unsurprising and certainly not unreasonable response to the opaque contents of the initial letter.
That letter did not cause, and would not have caused, the Provincial Superior, acting reasonably, to have conducted any wide-ranging investigation into the conduct of Brother Celcus in any of his roles up to that point in time at any school at which he had taught prior to his being at Marist Brothers Maitland in 1967.
In November 2002, the lawyers for the Marist Brothers received a letter from Stone & Partners, a firm of lawyers in the Northern Rivers region informing them that they acted for two brothers who were formerly pupils at the School. The letter contained a claim that, in 1965, both of the brothers had been sexually assaulted by Brother Celcus. This was the first notified claim to the Marist Brothers of any allegation of sexual abuse at the School by Brother Celcus.
The letter of claim was referred by the lawyers for the Marist Brothers to Catholic Church Insurances Ltd, making a claim for indemnity which was declined.
According to a note in the Marist Brothers' records, which was made on 11 May 2006, the following occurred after the receipt of the first letter containing the complaints: "In [an] attempt to formally close this file, it is noted that a request for medical evidence to Stone & Partners, Lawyers from Lismore, regarding this matter was never replied to. This was November 2002. The statute of limitations would make any further follow up to this case very difficult. Although not formally closed, it is unlikely there would be any further consideration for this matter."
The letter of complaint had mentioned that a Brother Ignatius was the School Principal at Lismore at the time. A note on the file made later recorded that Brother Ignatius was deceased.
It is to be observed that the claim from Stone & Partners was first brought to the attention of the Marist Brothers over two years after Brother Celcus had died. Investigations were not realistically feasible. When the former students were asked to provide medical evidence in support of their claim, no further evidence was forthcoming. In those circumstances no investigation at all of that claim occurred. I do not regard this as unreasonable.
In late January 2015, Porters Lawyers wrote on behalf of a former student claiming that he had been sexually abused by Brother Celcus in 1965 at Lismore.
A psychological report was provided on behalf of that complainant from Professor Dennerstein. Psychological treatment for the former student was funded by the Marist Brothers. In 2017, proceedings were commenced in the Supreme Court of NSW by the claimant. Those proceedings were resolved consequent upon an informal settlement conference which occurred in March 2018. That resolution occurred on the basis that the Marist Brothers did not admit that they were legally liable for the loss and damage claimed.
A review of all of the claims above, which represent the entirety of claims referred to in the records held by the Marist Brothers with respect to Brother Celcus, indicates that prior to the allegations of abuse by the plaintiff in this matter, and prior to the death of Brother Celcus in September 2000, there had been no articulated complaint of sexual abuse by Brother Celcus on any former student at the School. There had been no reason either prior to the deployment of Brother Celcus to take up his teaching role at Lismore in 1965, or at any time prior to his death, for the Marist Brothers to have had any concern about behaviour involving sexual abuse by Brother Celcus. Much less was there any reason for them to have conducted an investigation into his conduct by contacting any of his fellow Brothers or other members of staff at any of the schools, including Lismore, at which he had taught at any time prior to his death.

Other Records

In answer to an Amended Notice to Produce to the Court, on April 2021 the defendant produced 650 pages of documents, all of which were tendered by the plaintiff on this motion. There are multiple copies of some documents within those pages.
One group of documents appears to consist of a file held by the Marist Brothers, which could be regarded as the "personnel file" relating to Brother Celcus. There are many documents in this group which chart his various deployments and tasks as a Marist Brother. They include regular reports from him to the Provincial of the Marist Brothers as to his own progress, records made by the Provincial from time to time of his annual discussions with Brother Celcus, and many other matters of an administrative or personal kind.
There is nothing in that group, other than the documents recording complaints to which I have referred above, which suggests at any time, any concern whatsoever about the behaviour or conduct of Brother Celcus. He received favourable references for his work. He was interviewed quite regularly about his progress and how he was managing his religious life. A careful reading of these notes and records does not suggest that there was any reason for the Marist Brothers to be at all on notice of, or else concerned about, his behaviour towards school students.
A second separate group of documents relate to notified complaints received by the Marist Brothers with respect to Brother Celcus. I have reviewed those complaints and the documents above.
A third group of documents included a 1931 publication entitled "The Teacher's Guide or Principles of Education" which was to be used in schools of the Marist Brothers and a document published in 1960 entitled "Common Rules of the Congregation" of the Marist Brothers. Finally, there is a 1947 document entitled "Common Rules of the Institute". These documents were clearly internal to the Marist Brothers and seem to be of general application. They appear to apply to the members of the Marist Brothers not just in Australia, but also internationally. The terms of the documents are phrased as general guidance, rather than as particular regulations. They require interpretation and application to the specific circumstances of each school. The statements in these documents do not dictate to any one school principal precisely what they must do. Whilst they may provide information capable of being used by the plaintiff, they do not provide any information relevant to the defence of the plaintiff's proceedings nor about what may have been the arrangements at the School in 1966.

Other Investigations

In the statements of the various other former students whose evidence is relied upon as tendency evidence, mention is made of specific staff members of the School during the 1960s. Ms Diane Lachlan, a Professional Standards Assistant, gave evidence about those named individuals, which I accept, as follows: 1. Brother Patricius, who is described as the headmaster at the School in the period 1964 to 1970, left the Marist Brothers in January 1973. He died on 10 June 2020. I have earlier noted that Brother Ignatius was also described in the records produced by the Marist Brothers as the principal of the School. As both men are dead, it is unnecessary to resolve this apparent discrepancy in the factual description of their roles; 2. Alan Duroux, a lay teacher, died on 29 July 2020; 3. Brother Bartholomew, who was described as a teacher and whose lay name was Peter Spratt, left the Marist Brothers on 10 September 1975. He died on 23 July 2017; and 4. Brother Nicholas was identified as a teacher in 1966, which was at the time one of the former students who alleged he was sexually abused by Brother Celcus. It was not said that he was involved or else specifically aware of that abuse. The contemporaneous records demonstrate that Brother Nicholas, who is alive and remains a member of the Marist Brothers, was not a teacher at Lismore in 1966. There is no evidence which suggests that he could give any account of what was happening, including how the School was operated and managed, after he left the School in 1965.
A list of members of the Marist Brothers who were at the School in 1966, the source of which is unclear, was annexed to the plaintiff's solicitor's affidavit. Ms Lachlan gave evidence in cross-examination that to her knowledge, each of the named individuals was dead. The list did not attribute any specific role or position at the School to any of the named Brothers.

Discernment

In considering whether to exercise the discretion to grant the stay sought by the defendant, it is necessary to keep in mind and consider separately each of the two causes of action relied upon by the plaintiff.
However, at the heart of both causes of action relied upon is proof that the plaintiff was, in the circumstances set out in his statement, sexually abused by Brother Celcus.
The nature of the alleged sexual abuse is that it either took place when only the plaintiff and Brother Celcus were present, or else it occurred in a covert and discrete manner during lessons in the classroom, when other students were present.
Whether or not what the plaintiff describes as occurring to him in the classroom was likely or unlikely to be seen by other students is unclear. However, none of the "tendency witnesses", whose evidence is relied upon by the plaintiff, include in their statement any description of the events of sexual abuse which the plaintiff described. They are not witnesses of these relevant facts. No other witnesses of fact are to be relied upon.
Also, the nature of the evidence of the plaintiff, namely, his unassisted recollection or memory from when he was 11 years old is almost inevitably, as a consequence of the passage of time, likely to be impoverished. And there are areas of legitimate dispute in his evidence as I have identified in [51]-[53] above that cannot now be tested by reference to any contemporaneous material.
In the absence of any witness to the sexual assault relied upon by the plaintiff, and because Brother Celcus is now dead, the defendant is quite unable to test, or challenge in any meaningful way, these fundamental allegations of fact upon which the plaintiff's claim depends.
The plaintiff submits that in the proof of its case it will rely on evidence of tendencies of Brother Celcus described above at [57], which is to be adduced from seven such witnesses. The statements of these witnesses describe a number of occurrences between each of them and Brother Celcus which are relied upon to establish the relevant tendencies, and which were not witnessed by anyone. The use of such tendency evidence in these circumstances magnifies the prejudice to the defendant which arises from the death of Brother Celcus because the defendant is unable to investigate or challenge the principal evidence of the plaintiff or a significant circumstance relied upon in the plaintiff's case, namely the relevant tendencies.
There is one exception to the description of the lack of corroboration, which is contained in the statement of a former student annexed to the affidavit of the plaintiff's solicitor Ms Sharma affirmed on 1 April 2021. That statement suggests that a lay teacher, Mr Alan Duroux (although spelt Duro in the statement), was aware of the occasions where that former student was asked to leave the classroom in the company of Brother Celcus. The unchallenged evidence of Ms Lachlan is that Mr Duroux died on 29 July 2020.
The statement of this former student also refers to another student who was said to be considerably older - in the Fourth Form of the high school, as opposed to Fifth Class in the junior school, i.e., about 5 years difference in age - and who was said to be involved in a single episode of abuse. That student is not named or identified in any way. It is not even clear that the author of the statement knew that person's name at any time.
In those circumstances, I am satisfied that there is no reasonable enquiry which the defendant can make which would enable this statement to be independently verified. For that reason, the comments I have earlier made about the difficulties for the defendant remain.
The difficulty which confronts the defendant in meeting the pleaded case and the facts and circumstances of the sexual abuse is additionally heightened by the changes by the plaintiff in his second statement as to when the abuse occurred, and what course subsequently followed in his family relationships and schooling.
Having set out the particular circumstances of this case, there are six features which to my mind lead to the conclusion that these proceedings must be stayed.
First, the defendant is unable to investigate or to challenge directly the plaintiff's account of the abuse. The only possible witness of those facts is dead and had no notice of the allegations prior to his death. As well, there are no documents in existence which touch upon the factual account given by the plaintiff about the theft of money from a School staff member in the circumstances recorded in [48] above, including the date of the plaintiff's attendance at Richmond River High School and his progress, or lack thereof, whilst a student there.
Secondly, there are no documents which record any of the events of the School in 1966, including what the School's participation was at the Catholic Carnival, what role, if any was delegated to Brother Celcus at that Carnival, what other teachers were in attendance and what were their roles vis-à-vis the supervision of the plaintiff and other school students.
Thirdly, neither the headmaster of the School, whether that person be Brother Patricius or Brother Ignatius, nor Brother Celcus nor any other Marist Brother on staff in 1966 is alive, which means that the defendant cannot investigate, deal meaningfully with, or confront the factual account of the plaintiff of the abuse or the allegations about the role of Brother Celcus in the Year 6 classroom, including whether he was there every day or only on some days, for the whole of the teaching day, or only a part of it, particularly in light of the fact that the plaintiff says that he was abused up to three times a week.
Fourthly, in meeting the claim of vicarious liability, the headmaster of the School is unavailable to inform the defendant of the role that was assigned to Brother Celcus in his capacity as a teacher of Year 6, whether he was one of a number of teachers, how the teaching day and class timetable was organised - a matter which could throw light on the role that Brother Celcus was given to perform - and what interactions or joint sessions occurred with other classes, if any. As a matter of practicality, there is simply nothing, and nobody, available to the defendant to rely upon, or be informed by, in making a challenge to the factual account of the plaintiff, nor to lead in evidence so as to address the claim that the School is vicariously liable for the criminal conduct alleged to have been carried out by Brother Celcus. This is particularly so in circumstances where the pleading, as set out in [10] above, specifically directs attention to the indicia of the relationship between the School and Brother Celcus of the kind addressed in the Prince Alfred case.
Fifthly, the absence of relevant individuals and any document about the organisation of the School means that the defendant is unable to meet the claim in negligence against it. And because over 50 years has elapsed since the relevant events and in the absence, at this time, of any expert reports on liability, it is not at all clear how there could be any evidence about the relevant standards of the time. With the clarity of hindsight, and upon the basis that the plaintiff establishes the fact of his sexual abuse, an available path for the plaintiff is to mount his case on the basis that the fact that the sexual abuse occurred in the circumstances which he describes bespeaks negligence on the part of the School. Presented with such a case, the defendant would as a practical matter be obliged to adduce evidence as to what was done at the School, what measures were taken for the care and protection of the students, whether there were any other measures which could as a matter of practicality have been taken, and whether any of the measures was a reasonable response to the foreseeable risk of harm or injury to the plaintiff. The inability of the defendant so to do makes it not merely difficult, but I am satisfied, simply impossible for it to defend the proceedings.
Sixthly, it is now about 55 years or so since the events the subject of the proceedings happened. That lapse of time is very lengthy. More than 5 decades have passed. The claim arises from events which are earlier in point of time than the events considered by the Court of Appeal in either Trinity Grammar or GLJ. The lapse of time is much longer than the period considered by the High Court in Batistatos. The events here in issue took place in the decade prior to the events considered by the Court of Appeal in Moubarak. The lapse of time between the events and the commencement of proceedings is almost ten years longer in these proceedings than that considered by the High Court in Prince Alfred.
Of course, what is in issue is not merely a consideration of the comparison between time lapses in different cases. However, such comparisons do provide a context in which the judgments of those cases can be considered.
Such a lengthy passage of time is a recognised cause of unfairness in a civil claim. Such a statement in a case of this kind where the limitation period has been abolished by the Parliament does not involve any criticism of the plaintiff, nor is the plaintiff required to justify the lapse of time or explain his delay in commencing proceedings. However, in common law-based jurisdictions around the world, it is well recognised that such a lengthy passage of time may lead to the impoverishment of the evidence, particularly oral evidence which is dependent upon a witness's memory or recollection, and which is unassisted by any contemporaneous documents or other like evidentiary material. The authorities which set out this position are collected in Moubarak at [72]-[86] and do not need to be further expanded upon here.
As Bell P said in Moubarak at [87]: "The consequences of a lengthy passage of time between the events giving rise to a claim and its resolution may … generate unfairness ... As such, it may feed into an analysis of the availability or otherwise of a fair trial and the circumstances in which such unfairness may warrant a permanent stay of proceedings."
The six identified issues are each relevant to the question of whether the circumstances are exceptional such that the claimed relief, a permanent stay of the proceedings, ought to be granted, and whether it is in the interests of justice to do so. In all of the circumstances, in my view, an order for a permanent stay is the appropriate relief.
In my view, the circumstances taken together overwhelmingly suggest that any trial of this claim upon the basis of the two pleaded common law causes of action: vicarious liability for the criminal conduct of the alleged perpetrator; and negligence in the operation and management of the School which permitted, or, at least, did not prevent the alleged sexual assaults, would be manifestly unfair to the defendant.
Any trial of this claim would be so unfair that it would be, I think, to adopt the description of Bryson JA in Batistatos, no more than a formal enactment of the process of hearing and determining the plaintiff's claim which could not be expected to be a just trial. Any outcome would not result from anything other than a deeply flawed trial which would be so unfair as to bring the administration of justice into disrepute.
In expressing this conclusion, I recognise that it is not in the interests of justice, generally speaking, to prevent a plaintiff bringing a claim to hearing. Any permanent stay precludes that course of action and is self-evidently a disadvantage to the plaintiff. But if a trial is so unfair that, as I have concluded, the interests of justice are not served by that trial, then the disadvantage to the plaintiff is the unfortunate consequence.

A Comment

I wish to add a comment on the result which I have reached. The contents of this comment form no part of my consideration in determining whether to grant the relief sought by the defendant.
No doubt, the conclusion which I have reached may come as a surprise to many who are untutored in the common law and who wish to see justice done by the payment of damages for the many victims of historic sexual abuse in the community. However, as Gleeson CJ made clear in Lepore in 2003, as extracted at [22] above, the common law does not automatically provide for damages against a third party for the consequences of criminal conduct by way of sexual assault of children such as school students. Liability for damages will only be found where, after a trial which it is possible to conduct fairly, but not necessarily perfectly, negligence or any other cause of action is found to be established.
There are other avenues by which the victims of historic sexual abuse may seek redress. For example, the Australian Parliament has made provision by the National Redress Scheme, established pursuant to the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth), for compensation for sexual abuse which may be paid to a person such as the plaintiff in these proceedings which does not require the establishment of liability in any court according to the principles of the common law.

Orders

I make the following orders: 1. That the whole of these proceedings, commenced by Statement of Claim filed 26 July 2019, be and hereby are permanently stayed. 2. Plaintiff to pay the defendant's costs of the Notice of Motion filed by the defendant on 18 November 2020. 3. With respect to the cost of the proceedings, other than those costs dealt with by Order 2: 1. any party seeking costs is to serve any application for such orders, together with all affidavits in support and an outline of submissions not exceeding five pages, on or before 24 June 2022; 2. any party opposing an order is to serve any affidavits and outline of submissions not exceeding five pages on or before 8 July 2022. 1. Note that, subject to any further order, the Court will determine any such application on the papers.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 June 2022

(2019) 100 NSWLR 218

(2019) 101 NSWLR 762

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