Smith v The Council of Trinity Grammar School

Judgment

1. THE COURT: Mr Andrew Smith seeks leave to appeal from the summary dismissal of proceedings commenced by him in August 2021 seeking damages for personal injury suffered by him in 1981 when he was in Year 6 at the Trinity Grammar Preparatory School: Smith v The Council of Trinity Grammar School [2021] NSWSC 1592. The respondent Council is a body corporate established pursuant to s 4(3) of the Church of England (Bodies Corporate) Act 1938 (NSW), by order gazetted on 28 May 1948 (p 1291), which managed, governed or controlled the school at all relevant times. The Council is said to have owed a non-delegable duty to take reasonable care for Mr Smith's safety and welfare which was breached by exposing him to the risk of being sexually assaulted by Reverend Sandars. The Council is also alleged to have been vicariously liable for Rev Sandars' conduct, although no reliance is placed upon the provisions of Division 3 of Part 1B of the Civil Liability Act 2002 (NSW).
2. It is necessary to summarise two factual aspects of Mr Smith's pleaded claim. The first is the allegations that Mr Smith is said to have been sexually touched and fellated by the master in charge of the preparatory school, Reverend Keith Sandars, in his office (where the sexual touching is said to have occurred at least 11 times, followed by an unspecified number of occasions when he was fellated), with the door closed. The second is that Rev Sandars is said to have attended the change room near the swimming pool and spoken to Mr Smith while he was naked, and to have stroked Mr Smith's hair and ears from time to time during assembly. There is no suggestion that there were any witnesses to the abuse to which Mr Smith attests.
3. Mr Smith attended the high school conducted by the Council in 1982 and 1983, which is on another campus. He makes no allegation of any further abuse.
4. Mr Smith left the school after Year 8, and attended a public high school, which he left at the end of Year 10. He said that he started smoking cannabis and drinking from the age of 12 or 13, and suffered serious mental harm in 1985. His affidavit states: "I smoked dope for a long time, everyday for about 25 years, but stopped in 2017. I only smoke dope to dull the mental pain of what had happened to me. I drink Wild Turkey, about six per day."
5. Mr Smith said that he disclosed the abuse to the headmaster of the school in 2017, and that the school provided some counselling for him.
6. In addition to the physical and mental harm, Mr Smith attributed his failure to obtain a career as promising as he had anticipated to the abuse committed by Rev Sandars. His claim for economic and non-economic loss is potentially very substantial.
7. Reverend Sandars died in 2012. The headmasters of the school who appointed Rev Sandars as Master in charge of the preparatory school, and who held office during the events in question, have died. The PE teacher who might have provided evidence of what he saw at the swimming pool in 1981 has also died. The Council has been unable to locate Mr Smith's year 6 teacher, Mr Kleinig (although the teacher's wife (or ex-wife) and sons and brother have been contacted); it is not known if Mr Kleinig is in Australia. There is some basis for thinking he does not wish to be contacted. The Council was also unable to locate Rev Sandars' secretary from 1981, or another secretary who appears to have worked in the school office near Rev Sandars' office in 1981 (Ms Lewis).
8. However, the Council has obtained a statement from Ms Trost, who commenced working as Rev Sandars' secretary in 1982. She recalled that the door was always kept open when a student went in, except when Rev Sandars had parents and a boy visiting him. When the door was open, she could see directly into Rev Sandars' office, and in light of the configuration of power points and telephone sockets, she believed the office would have been in the same configuration in 1981.
9. The Council has also obtained evidence from some teachers who worked at the school in the 1970s and 1980s, to the effect that Rev Sandars' office had French doors which permitted people outside to look in. There was some evidence that the curtains were never closed.
10. It should be noted that, unlike other litigation of sexual abuse at the school concerning the conduct of a former teacher who was convicted of, inter alia, acts of indecency against boys (cf The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 at [24]), there is no evidence that Rev Sandars was ever investigated for, or charged with, let alone prosecuted and convicted of, any offence. The Council has obtained statements from many staff who worked with Rev Sandars to the effect that they never suspected him of any sexual misconduct with students.
11. Mr Smith's claim is permitted by reason of s 6A of the Limitation Act 1969 (NSW), which commenced on 17 March 2016. There is no limitation period for his claim. However, s 6A(6) makes it clear that the Court's power to dismiss or permanently stay proceedings remains.
12. The Council moved promptly for a permanent stay of the litigation. The applicable principles are not in issue, and were identified by her Honour at [19]-[22]. Her Honour reproduced what had been said in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2021] NSWSC 1204 at [37] that: "(i) the onus lies "squarely" on the defendant; (ii) a permanent stay should only be ordered in exceptional circumstances; (iii) a permanent stay should be granted when the interests of the administration of justice so demand; (iv) the categories of case are not closed; (v) one category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive; (vi) the continuation of proceedings may be oppressive if that is their objective effect; (vii) proceedings may be oppressive where their effect is seriously and unfairly burdensome, prejudicial or damaging; (viii) proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party; and (ix) proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute."
13. An appeal has subsequently been allowed from that decision, but those principles were uncontroversial and indeed this Court expressly endorsed them: The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 at [95]. Her Honour also referred to the factors which may give rise to prejudice such as the death of witnesses, the destruction or inability to locate documents, the "unknown unknowns", the general diminution of the body of available evidence and the unreliability of evidence which fades or amounts to reconstruction through having been recalled over a number of occasions. The applicant does not contend that any of those paragraphs disclose error.
14. The Council relied on the extensive efforts which had been undertaken to find testimonial and documentary evidence relating to the claim, which were summarised at length in her Honour's judgment, and need not be resummarised here. The essential matters relied upon by the Associate Justice in acceding to the Council's application may be seen from the conclusion of the reasons at [187]-[189]: "It is true that the School has to surmount a 'high bar' to obtain a permanent stay of proceedings and it should only be orders in exceptional circumstances. In my opinion, the inquires made by the school were reasonable and notwithstanding those inquires, the school cannot meaningfully deal with the claim against it. Conclusion There is a significant lack of records. The plaintiff can give evidence to the alleged sexual assaults but the alleged perpetrator has passed away. A number of witnesses who could give meaningful evidence have died and those who have not, are unable to shed light on the veracity of the plaintiff's allegations. The plaintiff's preparatory school records cannot be located, and there is no statement of duties or organisational charts that relate to Reverend Sandars. Crucially there is no report of any alleged sexual abuse by Reverend Sandars in relation to the plaintiff or indeed any other student. There is also a lack of insurance cover. It is therefore my view that despite making extensive enquires, the School is unable to meaningfully deal with the claim and a continuation of the proceedings would be unjustifiably oppressive and manifestly unfair to the defendant. This is in my opinion, a regrettable conclusion, however these are exceptional circumstances. A permanent stay of proceedings should be granted to the defendant."
15. On the day before the application was listed for hearing, an amended draft notice of appeal with 3 grounds was supplied, replacing the original draft notice which contained 11 grounds. The grounds in respect of which a grant of leave was sought were: "1 Her Honour failed to evaluate whether the evidence available for the Respondent was sufficient to enable it to defend the claim in a fair trial. 2 Her Honour failed to conclude that the Respondent's investigations, even at the interlocutory stage, meant that it could meaningfully respond to the claim in circumstances where those investigations had produced evidence which, if accepted, would make the Appellant's case improbable. 3 Her Honour failed to make any finding as to what were the exceptional circumstances so as to satisfy the making of the order for a permanent stay."
16. An amended summary of argument in support was also supplied. The gravamen of the new submissions advanced by Mr Sheller SC, who had not appeared at first instance, and which is based on the first and second of the proposed reformulated grounds, was as follows. It was put that the Council had amassed sufficient evidence to permit it to deny the sexual assaults alleged by Mr Smith, and indeed, that the Council had a relatively strong case. Somewhat unusually, it was put: "19. The volume of available evidence needed to be evaluated against the unavailability of Sandars and the absence of any allegations made against him in his lifetime. That is not the exercise in which the trial judge engaged and it was an error not to engage in it. The helpful witnesses, in particular Ms Trost, and to a lesser extent Mr Cujes, could give evidence which, if accepted, would mean the claim of Mr Smith would most likely fail. 20. Her Honour addressed Ms Trost's evidence but did not explain why it did not support the probability a fair trial could be had: J[173], WF 52. 21. A large number of the witnesses could give evidence from which an inference could be drawn that Sandars was unlikely to have committed the offences alleged by Mr Smith. This was not addressed at all by her Honour in her very brief reasoning and conclusion (J[187]-[189], WF 55-56)."
17. We do not accept that this is a valid criticism of her Honour's exercise of discretion. The fact that her Honour failed to address the strength of the Council's case simply reflects the fact that that was not how Mr Smith had propounded his case at first instance, when he was represented by different counsel. There his claim had been that he had a prima facie case, such that it would be most unjust for a permanent stay to issue. Mr Smith had emphasised before the primary judge that "a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed": Cox v Journeaux (No 2) (1935) 52 CLR 713 at 720; [1935] HCA 48 (transcript 3 November 2021, p 81, reproduced by her Honour at [133]).
18. It is difficult to discern error in her Honour failing to make a finding as to the strength of the defendant's case, which is now said by Mr Smith to be such that Mr Smith will "most likely fail", when no such submission was made to her. As was said in Macedonian Church v Eminence Petar (2008) 237 CLR 66; [2008] HCA 42 at [120]: "when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious."
19. A separate point, but one which was less prominent than the above, was proposed ground 3, turning on the failure to give reasons explaining why this was an exceptional case warranting the grant of a permanent stay. We do not accept that this ground possesses any great weight. Fairly read, [187]-[189] reproduced above articulate reasons for the conclusion in the penultimate sentence that exceptional circumstances are made out. In essence, they are the death of the alleged perpetrator, the unavailability of the most important witnesses of primary fact (the secretaries who worked in the school office in 1981 and the PE teacher), the unavailability of key witnesses on the claims in negligence based on failure to take steps to guard against the risk of harm (the headmasters who employed Rev Sandars in 1965 and who was in office in 1981) and the absence of any documents or other contemporaneous material dealing with Mr Smith's allegations.
20. One further consideration telling against the grant of leave, raised during the hearing of the application, turns on how the dismissal of an application for a permanent stay (which is what Mr Smith would seek on appeal, if leave be granted) might be reconciled with two other decisions where permanent stays have been ordered by this Court (allowing appeals by the defendants).
21. In the Anderson litigation involving the same school, the Council did not contest that the teacher in question (who had been convicted of similar offences) had committed the conduct against plaintiff. Instead the issue which would arise at trial was whether the Council was liable for a breach of non-delegable duty. One reason for granting a permanent stay turned on the unavailability of Rev Sandars. Bathurst CJ said in The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 at [459]: "the ability to deal with the alleged breach of non-delegable duty in respect of the first allegation of sexual assault is substantially, if not completely undermined, by the absence of the Reverend Sandars. That can be shown by the examination of the particulars of breach of duty. To the extent that they do not depend on the knowledge of the Reverend Sandars with which I have already dealt, they allege (excluding the allegations concerning camps) a failure to put in systems and procedures designed to protect students from abuse. In the absence of any records from the time to show the existence or non-existence of such procedures, the absence of the Reverend Sandars means that Trinity is unable to consider one way or the other what, if any, protections were in place and why at the time they were considered adequate."
22. The present case is different, because Rev Sandars is a key witness as to the central fact of whether the sexual offending took place; in The Council of Trinity Grammar School v Anderson he was a key witness as to whether another teacher's admitted offending was known and what steps if any were taken in response. Even so, it is difficult to reconcile the result in Anderson with the result which Mr Smith seeks on appeal if leave be granted.
23. Secondly, the most recent decision of this nature in this Court is The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78. There the trustees were sued both for breach of duty and as vicariously liable for the sexual abuse perpetrated by a priest who had died before any complaint was made by GLJ. Significantly, the trustees were on notice that the priest had sexually abused young boys, but GLJ was a young teenaged girl. Both Brereton JA and Mitchelmore JA made it clear that the death of the priest, the critical witness in the case, meant that any trial would be unfair. Brereton JA, with whom Macfarlan JA agreed, said at [4]: "There were only two potential witnesses to the alleged assault, GLJ and Father Anderson. Deprived of the ability to obtain any instructions from Anderson by his death, the Lismore Trust has no means for investigating the facts. The fact that Father Anderson may, by his own admission, have engaged in misconduct against young males, does not begin to establish that he assaulted GLJ as alleged. Even if he would not have been called as a witness, a matter which I would not regard as foreclosed, the circumstance that the foundational allegation of the assault was one which the Lismore Trust had no way of investigating and ascertaining whether or not the alleged assault had taken place, let alone contradicting it, has the consequence that, regardless of the veracity and credibility of GLJ, the trial could not be a fair one."
24. Mitchelmore JA, with whom Brereton and Macfarlan JJA agreed, said at [119]-[120] and [122]: The Lismore Trust was not on notice of GLJ's allegation of sexual assault before 2019. On her own account, there were no witnesses. There are no documents dating back to or around the time of the alleged assault that detail or otherwise refer to what GLJ alleges occurred. The issue of whether Father Anderson sexually assaulted GLJ is foundational to the causes of action pleaded against the Lismore Trust. Accordingly, although Father Anderson is not a defendant, he is a critical witness. Father Anderson died in 1996, before the Lismore Trust was on notice of the allegations. It follows that the Trust did not have an opportunity to confront him with the detail of GLJ's allegations and obtain instructions for the purposes of its defence of her claims, nor will it be able to call him as a witness if it so chose. The latter was not perceived to present a difficulty in Gorman, where the alleged perpetrator was also deceased. However, some inquiries were made of him before his death; and there was evidence of telephone conversations between him and one of the complainants, which had been recorded: at [85]. In the present case, Father Anderson died before any inquiries could be made; and there is no other material that sheds light on his putative response. … Whilst I am cognisant of the need for caution when it comes to comparing individual features of different cases, the significance of Father Anderson to the case against the Lismore Trust presents a similar difficulty to that which confronted the defendant in Moubarak. In my view, there is nothing a trial judge could do in the conduct of the trial to relieve against its unfair consequences …"
25. Once again, there is difficulty in reconciling that case and the present.
26. That said, every case in which the exceptional remedy of a permanent stay is sought must turn on its own facts.
27. It was fairly said by Mr Sheller, and fairly acknowledged by Mr Hutley, that while the decision was interlocutory, the effect was to deny Mr Smith of the right to a trial, as a result of which a relatively liberal approach to the grant of leave should be taken. That is so. We would also accept that there is a measure of public importance attaching to cases such as these, in light of the seriousness of the allegations. That consideration also favours the grant of leave. But the primary judge correctly formulated the applicable principles, and concluded that that a fair trial was either not possible, or so unfairly and unjustifiably oppressive as to constitute an abuse, in accordance with what was said in Moubarak bht Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [71(5)-(8)], [188]-[190] and [205]-[207]. The significantly altered stance adopted in the presentation of the application for leave does not persuade us that there are sufficient prospects to warrant a grant of leave. That conclusion does not turn merely upon the death of the alleged perpetrator. It is that fact coupled with the death or absence of other important witnesses who might enable the Council to defend the claims, namely, the secretaries who worked outside Rev Sandars' office, the PE teacher, the year 6 teacher and the headmasters at the time and the absence of any suspicion attaching to Rev Sanders during his lifetime, which informs the conclusion that this is, exceptionally, a proceeding which cannot go to trial because the Council cannot have a fair trial.
28. For those reasons, no basis for a grant of leave has been made out. The Court's order is that leave to appeal is refused, with costs.

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