Kawicki v Trustees of the Marist Brothers (No 2)

JUDGMENT

1. By a statement of claim originally filed on 21 September 2021, but subsequently amended twice in relation on oral applications made at different times during case management by the then List Judge, Garling J, Mr Kawicki claims damages from the defendant, the Trustees of the Marist Brothers, for both sexual abuse and serious physical abuse he alleges he was subjected to while a student at the Marist Brothers College at Maitland in the 1960s. Mr Kawicki attended the school from about 1959 when he was in fourth class until leaving in about 1966 or 1967 after completing only a few weeks of what was then referred to as the ‘fifth form’.

2. The pleading of his cause of action depends upon the facts pleaded in paras [5], [6], [7] and [8] of that statement of claim. The pleading, if I may say so, is very clear. So far as the allegations of child sex abuse is concerned, paras [5] and [6] identify the perpetrator of that alleged egregious misconduct as a Brother Florentine. No other allegation is made against any other person in relation to child sex abuse.

3. The pleading in relation to serious physical abuse is set out in paras [7] and [8]. Among the brothers alleged to have perpetrated that wrong against Mr Kawicki, is a person known as Brother Conran (Br Conran). I interpolate that Br Conran’s name was added in the second of the amendments that Garling J permitted at [7] subpara (f) by way of particulars of the Brothers responsible for violent conduct perpetrated against the plaintiff.

4. However, throughout his evidence and, at times, in submissions made from the bar table, Mr Kawicki has made clear that he was – and I am not quoting him, rather paraphrasing him in simple terms - able to evade the violent misconduct of Br Conran during his school years. However, Mr Kawicki made it clear at different times that he regards or believes Br Conran to be a perpetrator of both child sex abuse and serious physical abuse against other pupils at the school during Mr Kawicki’s time there. Accordingly, when statements of other pupils have been tendered into evidence, and I am particularly referring to Exhibits B and C, the objection of Mr Polin SC that the evidence about Br Conran is not admissible as relevant tendency evidence, or at all, on the basis of Mr Kawicki’s evidence and statements from the bar table about Br Conran, to which I have referred, has been upheld.

5. This morning, when the hearing resumed and after I ruled on the defendant’s objections to a statement which was admitted as Exhibit G, Mr Kawicki made an application for me to revisit the rulings I have made where I excluded the evidence pertaining to Br Conran. I should say, by way of background, that there is an outstanding issue for me to resolve concerning a subpoena that Mr Kawicki was given leave to issue on 8 July 2025, requiring Brother Conran to give evidence and to produce documents. I will say nothing more about that at the moment.

6. In any event, in a very powerful speech, Mr Kawicki sought to persuade me that the evidence against Br Conran was essential or critical to his case. He spoke very articulately about the injustice of the perpetration of child sexual abuse upon children by members of the clergy, and in particular, by members of the defendant’s Order of Brothers. In his submission, it would be a travesty if the full extent of the egregious, indeed criminal, misconduct of all of the brothers to whom he has referred at various times, could not be laid out fully in the context of this trial.

7. Despite Mr Kawicki’s eloquence, I am not prepared to revisit my earlier rulings. As I have sought to explain, and Mr Kawicki seems to understand, I am not conducting an inquiry into the incidence of child sexual abuse, either at the school conducted by the defendant or anywhere else. I will observe in passing, it is a notorious fact, known to most if not all Australians, that a very thorough Royal Commission was conducted into the responses of institutions to child sexual abuse under the chairmanship of McClellan JA, for a number of years, which to its great credit, produced a large number of reports, including a report specifically concerning the defendant.

8. However, I am not engaged in the exercise carried out by the Royal Commission into Institutional Responses to Child Sexual Abuse. And it would be an abuse of my power were I to embark on some sort of commission of inquiry in the context of a civil case where I am empowered and required only to determine a claim for damages for personal injury brought by an individual member of the community against the Marist Brothers, turning on its own facts in terms of the allegations set out in the statement of claim, and the evidence that the plaintiff has given in support of such allegations. Not only are these proceedings not a commission of inquiry, let alone a Royal Commission, they are not criminal proceedings, and no one is on trial for any crime before me, except to the extent to which the allegations made by Mr Kawicki about what he says he suffered as a student at the defendant’s school obviously involved egregious, indeed, criminal misconduct, if they are established to the civil standard of proof on the balance of probabilities.

9. I am bound by the rules of evidence as promulgated by Parliament in the Evidence Act 1995 (NSW) (the Act), and the basic rule of admissibility, being the relevance of evidence is set out in s 55 of the Act. It is quite clear to me, that whatever might be said in a properly constituted tribunal about the allegations that Mr Kawicki has made against Br Conran from the bar table, that his alleged egregious misconduct is simply not relevant to the issues that I have to determine.

10. I can only revisit the rulings I have already made where it is clear that I was in error in the rulings I made about the relevance of those passages of evidence. Frankly, whilst my rulings are always subject to review elsewhere, I am not persuaded that I am in error in the decisions I have made about the passages of evidence that were sought to be tendered concerning Brother Conran.

11. I refuse Mr Kawicki’s application to revisit or reopen those previous rulings.

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