The Council of Trinity Grammar School v Anderson [2019] NSWCA 292 | Case summary

Court of Appeal (NSW)|2019-06-27|Before: Bathurst CJ, Payne JA, Adam P

State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Zelden v Sewell Henamast Pty Limited v Sewell [2011] NSWCA 56 Texts Cited: Nil Category: Principal judgment Parties: The Council of Trinity Grammar School (applicant) Robert Anderson (respondent) Representation: Counsel: N Hutley SC with E Holmes and A Oakes (applicant) J Maconachie QC with J Sharpe (respondent)

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The Council of Trinity Grammar School (the applicant) sought an order that civil proceedings instituted by Robert Anderson (the respondent) on 25 January 2016 for damages arising from sexual assaults alleged to have occurred whilst he was a student at the school be permanently stayed. The primary judge dismissed the motion and Trinity has sought leave to appeal from that decision. The respondent was a student in sixth form in 1974 at Trinity Preparatory School (the Preparatory School) and subsequently attended Trinity Senior School in 1975 and 1976. Mr Futcher (Futcher) commenced teaching at the Preparatory School in 1974. He taught sixth form but did not teach the respondent's class. The Headmaster of Trinity at the time of the assaults was Mr Wilson-Hogg and the Reverend Sandars was the Master in Charge of the Preparatory School. The Reverend Sandars was described as having run the school in "an almost authoritarian fashion". On 11 April 1997 the respondent complained to the police that he had been sexually assaulted by Futcher over a period of at least 4 to 5 years whilst a student at the Preparatory School and that some of the assaults occurred during organised school camps in Lake Macquarie and Colo River where Futcher was alleged to have been the supervisor in the course of his employment as a teacher at the Preparatory School. Trinity was first notified of the sexual abuse perpetrated by Futcher against the respondent in 1997 by the police. At that stage, the claim by the respondent was statute-barred. On 7 September 2004, Hannigans solicitors made a claim on behalf of the respondent and on 10 December 2004, indicated an intention to institute proceedings by 20 December 2004. At that stage, although Mr Wilson-Hogg had died on 6 May 1997, the Reverend Sandars was still alive. Trinity through its solicitors sent a letter which denied liability and asked on what basis the respondent's claim was not statute-barred by reason of the Limitation Act 1969 (NSW). Nothing further was heard from Hannigans. The position under the Limitation Act as it then stood was that an application for extension could have been made under s 60G. The solicitors for the respondent did not reply to the letter. The Reverend Sandars died on 26 May 2012. Nothing further was heard from those acting for the respondent until 12 June 2014. In September 2004, Trinity was advised that it was "unlikely" that the respondent would bring a claim against Trinity, citing as one reason that the respondent's claim was statute-barred unless leave could be obtained to bring the claim out of time. In October 2014, Porters Lawyers, acting for the respondent, stated that the respondent intended to apply for an extension of time under the Limitation Act. On 28 April 2015, Mr Roderick West, the successor Headmaster to Mr Wilson-Hogg was interviewed by Police. On 25 January 2016, Mr West died. On 17 March 2016, s 6A of the Limitation Act came into effect abolishing the time bar in respect of civil proceedings for damages arising out of child sexual assaults. The respondent's Amended Statement of Claim pleaded that the respondent was sexually assaulted by Futcher between 1974 and 1976. The Amended Statement of Claim pleaded that Trinity breached its non-delegable duty of care owed to the respondent and was vicariously liable for the acts of Futcher in sexually assaulting the plaintiff and the harm suffered by the respondent. The assaults alleged fell into four categories. The first allegation of sexual assault pleaded was that Futcher showed the respondent pornographic materials whilst transporting him from the Preparatory School to the school's sportsground in 1974. The second set of allegations concerned assaults which occurred at Futcher's unit in Drummoyne during 1974 and 1975. The third set of allegations concerned incidents which occurred when Futcher picked up the respondent from Trinity Grammar in his van no earlier than 1975. The fourth set of allegations pertained to assaults which were alleged to have occurred at organised school camps in the Lake Macquarie and Colo River areas and at Camp Chakola in the Kangaroo Valley. Trinity accepted that Camp Chakola was a school camp and that it was in a position to meet the allegations in respect of that camp. There were five main issues on appeal. Should leave to appeal be granted? It is appropriate that leave to appeal be granted as there are "powerful arguments that the trial judge erred in law such that the discretion should be re-exercised", the incorrect exercise of discretion would cause the applicant substantial injustice and the approach that the court should take in cases of this nature is "a matter of some considerable importance": [419]-[421] (Bathurst CJ); [508] (Payne JA); [509] (Simpson AJA). Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39; Jaycar Pty Limited v Lombardo [2011] NSWCA 284; Zelden v Sewell Henamast Pty Limited v Sewell [2011] NSWCA 56; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 referred to. Did the primary judge err in the exercise of his discretion to refuse a permanent stay of the proceedings? The primary judge erred in the exercise of his discretion by failing to give separate consideration to the claims based on a breach of non-delegable duty and the claims based on vicarious liability which require different, although potentially overlapping, inquiries: [432]-[434] (Bathurst CJ); [508] (Payne JA); [509] (Simpson AJA). State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 referred to. The primary judge erred in the exercise of his discretion by concluding that all available material had not been sought from the police and that it had not been established that a statement from Mr Wilson-Hogg or the Reverend Sandars was not in existence: [435]-[439] (Bathurst CJ); [508] (Payne JA); [509] (Simpson AJA). The primary judge erred in the exercise of his discretion by conflating the various camps during which it was alleged the respondent was sexually assaulted: [440]-[441] (Bathurst CJ); [508] (Payne JA); [509] (Simpson AJA). Should the discretion be re-exercised? Absent the Reverend Sandars, Trinity is "not in a position to deal meaningfully" with the alleged breach of non-delegable duty in respect of the first, second and third sets of allegations of sexual assault. The absence of the Reverend Sandars and any records from the time to show the existence or non-existence of systems or procedures to protect students from abuse and the lack of assistance obtained from the statements and affidavits of teachers means that Trinity is unable to deal with whether the first, second and third sets of allegations were caused by a breach of its non-delegable duty: [448]-[463] (Bathurst CJ), [508] (Payne JA); [509] (Simpson AJA). Absent the Reverend Sandars, Trinity is "unable to provide a meaningful response to the claim" of vicarious liability in respect of the first, second and third sets of allegations of sexual assault. Trinity is not in a position to ascertain whether it acquiesced in or authorised Futcher to transport the respondent to sport, to pick him up to take him to the unit at Drummoyne or to pick him up in his van: [464]-[467] (Bathurst CJ); [508] (Payne JA); [509] (Simpson AJA). Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 referred to. Due to the effluxion of time, the unavailability of witnesses, particularly the Reverend Sandars and the absence of documentation concerning the attendance of pupils at the camps, Trinity is unable "to deal in any meaningful fashion with the critical question of whether Futcher was placed by Trinity in a position of power and intimacy which gave the occasion for the wrongful acts": [468]-[477] (Bathurst CJ); [508] (Payne JA); [509] (Simpson AJA). Were the inquiries made by Trinity adequate? The inquiries made by Trinity to ascertain if material was available to enable it to meet the claim were reasonable. It was not necessary for Trinity to "pursue any line of inquiry however remote which may, as a matter of mere possibility, produce some information which may be of assistance in dealing with the issue" as that would "pose an unreasonable burden on the applicant" and "be oppressive and unfairly burdensome": [478]-[490]. Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20 referred to. Was Trinity responsible for the position in which it finds itself by not investigating the claim earlier? The difficulty in which Trinity finds itself in dealing with the proceedings was not due to its own neglect and default. It was not unreasonable for Trinity to adopt the position that the claim was statute-barred and not investigate its underlying merits. Further, there is nothing to suggest that any further material would have been available in the period between 12 June 2014 and February 2016 when Mr Thompson was instructed and investigations commenced: [491]-[505] (Bathurst CJ); [508] (Payne JA); [509] (Simpson AJA). Lane v Registrar of Supreme Court (NSW) (1981) 148 CLR 245; [1981] HCA 35; British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197 referred to.

Judgment

BATHURST CJ: In 1969, the respondent, Robert Anderson (the respondent), commenced his education at Trinity Preparatory School (the Preparatory School). He completed his primary education at that school in 1974. During that year he was in Form 6S, his Form Master being Mr Brian Simms. He spent the following two years at the Trinity Senior School, leaving the school in 1976. The Senior School occupied separate premises to the Preparatory School.
Mr Neil Futcher (Futcher) commenced employment as a teacher at the Preparatory School in 1974. The school records show that he remained employed at the school until the end of 1977. He taught sixth form at the Preparatory School but did not teach the respondent's class.
The respondent alleges in these proceedings that he was sexually assaulted by Futcher whilst he was attending the school. The precise allegations are set out in the Amended Statement of Claim filed in the proceedings on 14 December 2017. I have extracted the relevant paragraphs in which the allegations are made at [29] to [37] below. The respondent alleges that the applicant (Trinity) is liable for the loss and damage he has suffered as a result of the assaults.
The Headmaster of Trinity at the time of the assaults was a Mr James Wilson-Hogg (Mr Wilson-Hogg), whilst the Reverend Keith Sandars (the Reverend Sandars) was the Master in Charge of the Preparatory School. Both are deceased. Trinity's consequent inability to obtain instructions from each of them forms an important element in its application for a stay of proceedings.
On 11 April 1997, the respondent complained to the police that he had been assaulted by Futcher. He alleged that some of the assaults occurred while he was a student at the Preparatory School and that some took place during organised school camps in the Lake Macquarie and Colo River areas where Futcher was the supervisor in the course of his employment as a teacher at the Preparatory School. It was also alleged that further sexual assaults took place outside school hours in a home unit in the Gladesville area. It was alleged that the assaults took place over a period of at least 4 to 5 years.
The confidential police report dated 28 May 1997 noted that the Chief of Detectives at Ballina Police Station had made "discreet inquiries" of Mr Milton Cujes, who was described in the police report as the Principal of Trinity Grammar Preparatory School (he was in fact the Headmaster of the school), who had informed him that Futcher was no longer a member of staff. The inquiries of Mr Cujes by the Chief of Detectives seem to be the first time that Trinity was notified of the claim. The police report does not specify when these inquiries were made.
On 17 June 1997, the Headmaster's secretary wrote to a Detective Sergeant Farrell giving him some information concerning all students who were at Trinity at the time and stated that the Trinity archivist would investigate the records to ascertain any information concerning another teacher, a Mr Neville Betteridge (Betteridge).
It should be noted that Mr Wilson-Hogg died on 6 May 1997.
On 7 September 2004, a firm of solicitors, Hannigans, wrote on behalf of the respondent to the Director of the Professional Standards Unit for the Diocese of Grafton stating that the respondent "attended camps to [sic] Lake Macquarie or the Colo River supervised by teachers from the school". The letter enclosed two statements from the applicant and asked if the matter could be negotiated on an unlitigated basis. The letter was forwarded to Mr Cujes.
On 10 December 2004, Hannigans wrote to Trinity indicating an intention to institute proceedings by 20 December 2004 unless a formal response was received to the letter of 7 September 2004 by that date.
By letter dated 16 December 2004, Emil J Ford & Co Lawyers responded on behalf of Trinity. In a letter headed "Without Prejudice except as to Costs" they commented as follows: "…having reviewed your client's statements carefully, we cannot see any connection with our client, other than that the alleged perpetrator is described as having been an employee of our client. That alleged employment status does not seem to have played any part in the events described by your client. None of the alleged assaults are said to have been committed on property owned by, or related to, our client, nor are any of the events described (either as assaults or precursors to assaults) connected in any way with our client. In any event, even if there were some way in which the employment of the alleged perpetrator with our client was said to have provided some context for the offences, you will no doubt be well aware of the very limited basis on which an employer may be held liable for criminal conduct by an employee of the type described by your client to police. In order that we may advise our client and obtain instructions, could you please indicate the basis on which it is said that our client has some liability in relation to the events described in your client's police statements? Please also indicate the basis on which it is said that your client is not statute barred in relation to his alleged claim by reason of the Limitation Act 1969 (NSW)."
Nothing further was heard from Hannigans.
In an affidavit filed on behalf of Trinity, its Bursar, a Mr Dungan, gave evidence that because of the Headmaster's contact with the police in 1997 he believed the complaints were being investigated, or had been investigated by the police.
On 26 May 2012, the Reverend Sandars died.
Nothing further seems to have occurred so far as Trinity was concerned until 27 May 2014 when Sergeant Pollock of Ashfield Police requested certain records from Trinity.
On 12 June 2014, a firm of solicitors, Porters Lawyers stated that they were acting for the respondent in his claim for damages and sought information "pursuant to Part 5.2 of the Uniform Civil Procedure Rules 2005" of the identity and whereabouts of the owner of the school, the operator of the school, the principals of the school at the relevant time, Futcher's employer, the entity responsible for supervising him and the insurer of the school. On 25 June 2014, Emil Ford Lawyers replied on behalf of Trinity denying any obligation to supply the information, enclosing a copy of its letter to Hannigans and asking for a response to its inquiry in their letter of 16 December 2004 concerning the Limitation Act 1969 (NSW).
On 8 August 2014, Porters Lawyers repeated their request. In addition, they sought records relating to complaints against Futcher, certain insurance records and details of complaints made to "Towards Healing" concerning Futcher. The request was stated to be made "to allow for settlement discussions to proceed". On or about 25 September 2014, the police executed a search warrant against Trinity seeking all student and teacher records, school reports, class lists and school photographs in relation to the respondent and certain other pupils and in respect of Futcher and Betteridge.
On 17 September 2004, a letter was sent from Emil Ford & Co Lawyers to Mr Cujes. The letter was headed "Futcher and Betteridge". The contents of the letter pertaining to the "likelihood of Mr Anderson making a claim" are extracted below: "We refer to our telephone conversation on 15 September 2004 and to Mrs Xuereb's letter of the same day. As we understand it, the School Council seeks our advice on (a) the likelihood of Mr Anderson making a claim against the School; and (b) whether the School should join the Diocesan Pastoral Care and Assistance Scheme and, if, so, how that Scheme would relate to the School's existing insurance cover. Likelihood of Claim We are, of course, unable to say whether or not Mr Anderson is likely to bring a claim against the School. We say this both because we do not know if he will act rationally and because we do not know all the facts. Based on what we do know and assuming that Mr Anderson will act rationally, we believe that it is unlikely that he will bring a claim against the School because: There is nothing in his statements which indicate that the School was on notice of the alleged misconduct of the two teachers or that there was any negligence on the part of the School in allowing the misconduct to occur or to continue to occur. The alleged misconduct took place a long time ago and, based on Mr Anderson's statements, he told his wife and a counsellor about them in 1987, the Police in 1993 or 1994 and the Police again in 1997. Therefore his claim is statute barred unless he can obtain leave from a court to bring the claim out of time. To succeed, he would have to show that he had a good cause and that the School was not prejudiced by the many years that have elapsed.
On 22 September 2004, Mr Cujes send a "Confidential Advice to Council (Mr. J. Mills; Mr. P. Meldrum) Regarding Item 2004/2/R". The advice stated "[h]aving shared with Mr. David Ford the information we received from the Professional Standards Unit of the Anglican Diocese, his comments are as follows". The advice then copied the letter of advice received from Emil Ford & Co Lawyers on 17 September 2004.
On 17 October 2014, Porters Lawyers wrote to Emil Ford stating that their client intended to apply for an extension of time under the Limitation Act. That same day, Nathan Croot, a Senior Associate at Emil Ford Lawyers forwarded the letter from Porters Lawyers to Peter Green, Deputy Head Master and Director of Boarding. Mr Green responded to the email asking "what advice do you suggest now that there is a response from Mr Anderson's lawyers?". Mr Cujes was also cc'd in the email. On 20 October 2014, Mr Croot sent an email to Mr Green stating: "Our view is that the letter is an attempt to coax the School into making an offer to settle the claim. The letter certainly does not contain any substantive reasoning as to why the School may be liable. The Limitation Act only allows extensions in certain circumstances. Based on the facts as we know them, we do not believe Mr Anderson is entitled to an extension of the limitation period… If Mr Anderson receives proper advice from Porters and he acts rationally, it is very unlikely that he will apply for an extension or commence proceedings against the School. Unfortunately, there is no guarantee of either of those things and so it is possible that he will commence proceedings".
On 28 April 2015, Mr Roderick West, the successor Headmaster to Mr Wilson-Hogg, was interviewed by the police. On 25 January 2016, Mr West died.
The proceedings were instituted on 29 January 2016.
On 17 March 2016, s 6A of the Limitation Act came into effect abolishing the time bar in respect of civil proceedings for damages arising out of child sexual assaults. The section was in the following terms: "6A No limitation period for child abuse actions (1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act. (2) In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age: (a) sexual abuse, (b) serious physical abuse, (c) any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse). (3) To remove doubt, connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age. (4) This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise. (5) This section extends to the following causes of action: (a) a cause of action that arises under the Compensation to Relatives Act 1897, (b) a cause of action that survives on the death of a person for the benefit of the person's estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944. (6) This section does not limit: (a) any inherent jurisdiction, implied jurisdiction or statutory jurisdiction of a court, or (b) any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction. Note. For example, this section does not limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible."
On 16 August 2016, criminal proceedings against Futcher were commenced alleging the commissions of acts of indecency and buggery against the respondent and other persons. Futcher was convicted and sentenced to a total term of imprisonment of 18 years and 4 months.
By an Amended Notice of Motion dated 1 August 2018 Trinity sought the following orders: "1. That the proceedings be permanently stayed pursuant to section 67 of the Civil Procedure Act 2005 NSW and Rule 2.1 of the Uniform Civil Procedure Rules 2005 NSW. 2. In the alternative to 1 above, that paragraphs 5C (including the particulars thereto), 9 and 15, and particular (h) to paragraph 13, of the Amended Statement of Claim be stuck out pursuant to Rule 14.28 and/or rule 2.1 of the Uniform Civil Procedure Rules 2005 (NSW). 3. That the proceedings or the plaintiff's claim be summarily dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW)."
As the primary judge explained, the relief was sought on the basis that the delay between the occurrence of the abuse of the respondent and the hearing of the proceedings before the Court created a situation which was manifestly unfair to Trinity, or would otherwise bring the administration of justice into disrepute if the proceedings were allowed to continue.
The primary judge dismissed the motion and Trinity has sought leave to appeal from that decision.

The structure of the judgment

The balance of the judgment will deal with the issues in the following order: A The pleaded case and its particularisation; B The legal principles underlying the respondent's claim; C The evidence on the application; D The primary judgment; E The grounds of appeal; F The submissions; G Consideration.

A The pleaded case and its particularisation

The Amended Statement of Claim (the Statement of Claim) pleaded that in 1974 Futcher was appointed as a Master at the Preparatory School by the Reverend Sandars, the appointment being endorsed by Mr Wilson-Hogg. It pleads that the respondent was a student at Trinity from 1967 through to and including 1976.
Paragraph 5C of the Statement of Claim pleads that by 1975 the applicant knew or ought to have known that Futcher posed a risk to students under his care. The particulars relied upon related to physical and sexual assaults by Futcher on a Peter Green (a pseudonym), a sixth class student in 1975. It was alleged that in 1975, on a number of occasions, Futcher took Peter Green to an empty classroom and caned him three or four times on his exposed buttocks. It was alleged that Peter Green, in company with his mother, complained to the Reverend Sandars about the conduct in late 1975, stating Futcher "made me drop my pants and pull my cheeks apart when he caned me".
In addition, the following allegation is particularised: "i) In early 2007, the mother of the plaintiff, Barbara Anderson asked Sandars whether 'he was aware that Neil Futcher was attacking boys at the school and attacked Rob' to which he replied 'yes'."
The allegation of sexual assault was pleaded in the following terms: "6. During the years 1974 to 1976 and whilst a student at Trinity Grammar School, the plaintiff was sexually assaulted by Futcher. PARTICULARS OF SEXUAL ASSAULT a) On one occasion in 1974, Futcher transported the plaintiff from Trinity Grammar School to the Trinity Grammar School sports ground in Futcher's car; b) On this occasion whilst transporting the plaintiff, Futcher showed the plaintiff pornographic materials; c) On multiple occasions between 1974 and 1976, Futcher took the plaintiff to his residence in Drummoyne; d) On these occasions Futcher inserted his penis into the plaintiff's anus; e) On multiple occasions between 1974 and 1976, Futcher transported the plaintiff to various locations in Futcher's car; f) On these occasions Futcher inserted his penis into the plaintiff's anus, forced the plaintiff to perform oral sex on Futcher, and performed oral sex on the plaintiff; g) On multiple occasions between 1974 and 1976, Futcher picked the plaintiff up from Trinity Grammar School in his van; h) On these occasions Futcher forced the plaintiff to perform oral sex on Futcher; i) From 1974 to 1976, on multiple occasions, Futcher and another Preparatory Staff teacher from Trinity Grammar School, Neville Betteridge, took the plaintiff and other students from Trinity Grammar School camping in Macquarie Fields; j) During these camp trips, Futcher would photograph the plaintiff naked, sleep with him in the same tent and allowed the plaintiff access to pornographic materials; k) Futcher also sexually assaulted the plaintiff on these trips to Macquarie Fields, by masturbating the plaintiff's penis and later in time he would take him back to Macquarie Fields alone in his car and insert his penis into the plaintiff's anus; l) From 1974 to 1976, Futcher also took the plaintiff and other students from Trinity Grammar School on multiple day school organised camps, in various other locations such as the Colo River, or Camp Chakola in the Kangaroo Valley; and m) During these camps trips, Futcher would photograph the plaintiff naked, sleep with him in the same tent and allowed the plaintiff access to pornographic materials."
The Statement of Claim pleaded that Trinity was liable for these assaults by reason of the fact it owed a non-delegable duty of care to ensure reasonable care was taken for the respondent's safety (paragraph 8 of the Statement of Claim). Paragraph 12 alleges a breach of that duty. It is in the following terms: "12. The defendant by their servants and/or agents breached their duty of care owed to the plaintiff. PARTICULARS OF THE DEFENDANT'S BREACH OF DUTY a) By their employee, servant and/or agent the defendant assaulted the plaintiff; b) Failure to devise and maintain a suitable system or procedure so as to ensure its employees, servants and/or agents were suitable for the purpose of being entrusted with the care of children; c) Failure to take adequate steps to ensure the suitability of Futcher to act as a teacher and to verify his suitability; d) Failure to warn or train its employees, servants and/or agents in the risks and dangers of child abuse; e) Allowing Futcher to teach at Trinity Grammar School without taking procedures to ensure that he was not likely to abuse students; f) Failure to identify the plaintiff as a victim of child abuse and to locate the plaintiff and offer counselling; g) Failure to supervise or adequately supervise the plaintiff; h) Failure to supervise or adequately supervise Futcher; Failure to institute and maintain a system whereby teachers and staff were properly supervised so as to reduce or eliminate the risk of sexual assaults; i) Failing to instruct Futcher not to abuse the plaintiff or children from Trinity Grammar School; j) Failure to institute and maintain a system of mandatory reporting of child abuse; k) Failure to institute and maintain a system of instruction for teachers and staff, specifically aimed at preventing sexual assaults; l) Failure to institute and maintain a system whereby teachers were encouraged to and required to report to the defendant concerns about sexual abuse; m) Failure to institute a system whereby children who were being subjected to sexual assaults were instructed to report in relation to themselves or others; n) Failure to institute and maintain a program to educate children of Trinity Grammar School in relation to their right to be free from sexual abuse and to report any sexual abuse to an appropriate designated person or persons within Trinity Grammar School; o) In having the plaintiff as a child at Trinity Grammar School, they represented to the plaintiff, through his parents, that he would be safe from harm whilst in the care of Trinity Grammar School; p) In allowing Futcher to have access to the children at Trinity Grammar School, they represented Futcher to the plaintiff, through his parents, as a person who could be trusted to teach, provide pastoral care and religious instruction to the plaintiff and they increased the risk that Futcher would be able to sexually abuse the plaintiff; q) They placed the plaintiff in situations where he was in fear that he may be sexually assaulted by Futcher; r) Failure to take any action in respect of supervising Futcher or removing Futcher from his teaching position and/or camp supervisor position, following the disclosure by [Green (a pseudonym)] to Sandars in late 1975; s) In allowing Futcher to organise, attend and supervise the plaintiff on school organised and /or sanctioned camps, at which he was groomed and/or sexually abused by Futcher during the period 1974-1976; and t) These camps were either organised and/or sanctioned by the defendant: (i) In 1974, Futcher informed Sandars, that he was organising camps at Macquarie Fields, which involved selected students from Trinity Grammar School; (ii) In 1974 Sandars allowed Futcher to organise and attend these camps and took no steps to ensure the safety of the Trinity Grammar School students who were attending; (iii) In December 1974, Trinity Grammar School promoted and reported in its Annual Magazine 'The Triangle', on the Crusader Camps, camps for 'sixth class boys' in the Murrumbidgee Irrigation Area in May and the annual school camp at Chakola in the Kangaroo Valley in August, as 'valuable and constructive activities'; and (iv) In December 1975, Trinity Grammar School promoted in its Annual Magazine 'The Triangle' that 'group vacation camps and class excursions by members of our Preparatory School Staff (which included Futcher) have provided invaluable opportunities for the intellectual, physical and social training of our boys'."
Further particulars were sought of this paragraph, the request and the response were as follows: "2. What are the material facts and matters on which it is alleged at paragraph 12 s) of the Amended Statement of Claim that the defendant allowed Futcher to organise, attend and supervise the plaintiff on camps? Please state: a. What were the school organised and/or sanctioned camps referred to, in particular: i. Where were they held? The camps were held at Macquarie Fields. ii. When were they held? Between 1974 and 1976. iii. What students (by general description) is it alleged attended? Trinity Grammar students including Wayne Rowley, Craig Wallis and a number of other boys. iv. What staff members is it alleged attended? Neil Futcher and Neville Betteridge. b. Is it alleged that those camps were organised or sanctioned by the school? It is alleged that the camps were sanctioned by the school. c. If it is alleged that the camps were organised by the school, please set out all the facts and matters on which the plaintiff relies in alleging that the school organised the relevant camps? Not applicable. d. If it is alleged that the camps were sanctioned by the school, please set out all the facts and matters on which the plaintiff relies in alleging that the school sanctioned the relevant camps. Please refer to the information provided at paragraph 12(f) of the Amended Statement of Claim. e. Please set out all of the facts and matters relied on in support of the allegation that the school allowed Futcher to: i. organise ii. attend iii. supervise the plaintiff at the relevant camps. Please refer to the information provided at paragraph 12(f) of the Amended Statement of Claim. f. Please provide details of the grooming and/or sexual abuse which it is alleged Futcher perpetrated at the relevant camps, including all the material facts and matters relied on in making the allegation. Please refer to the information provided at paragraph 6(i), (j) and (k) of the Amended Statement of Claim. 3. What are the material facts on which the plaintiff relies in alleging at paragraph 12(t)(i) of the Amended Statement of Claim that Futcher informed Rev. Sandars that he was organising camps at Macquarie Fie[l]ds, which involved selected students from Trinity Grammar School? If that 'informing' process occurred verbally, please provide full particulars of the conversation, including when and where it took place, and the effect of words exchanged. If it occurred in writing, please provide a copy of the relevant document or documents. Please refer to the documents produced under subpoena by the Office of Public Prosecutions on 21 August 2017. On page 610 of the transcript dated 30 August 2016, Futcher states that he spoke to Reverend Sandars about the camps that Futcher organised in 1974 and that Reverend Sandars had allowed him to proceed with organising the camps. 4. What are the material facts on which it is alleged at paragraph 12(t)(ii) of the Amended Statement of Claim that Rev. Sandars allowed Futcher to organise those camps? If the Rev. Sandars allegedly granted permission verbally, please provide full particulars of the conversation, including when and where it is said to have taken place, and the effect of the words exchanged. If the permission is said to have been given in writing, please provide a copy of the relevant document or documents. If the plaintiff contends that Rev. Sandars provided permission to Futcher by conduct or implication, please say so and outline the circumstances that the plaintiff says gave rise to any such implication. Please refer to the answer provided at paragraph 3. 5. In relation to paragraph 12(t)(iii) of the Amended Statement of Claim, does the plaintiff contend that: a. he attended Crusader camps; No. b. Neil Futcher attended Crusader Camps; No. c. he attended the Murrumbidgee Irrigation Area; No. d. Neil Futcher attended the Murrumbidgee Irrigation Area; No. e. He was subjected to sexual abuse occurred on any of the camps in the above subparagraphs? No."
The response was corrected to change the reference to paragraph 12(f) of the Amended Statement of Claim in answers 2(d) and (e) to 12(t).
It will be noted that the particulars allege that the Reverend Sandars either authorised or sanctioned the camps where some of the sexual abuse was said to have taken place.
The vicarious liability claim was pleaded as follows: "13. The defendant is vicariously liable for the acts of Futcher in sexually assaulting the plaintiff (as particularised in paragraph 6 above) and the harm suffered by the plaintiff, whilst they had the care, management and control of the school. PARTICULARS OF VICARIOUS LIABILITY OF THE DEFENDANT a) The defendant conducted Trinity Grammar School so as to provide in addition to academic instruction, care, supervision and protection for the children; b) In the circumstances, the responsibilities of the teachers of Trinity Grammar School extended to providing care, protection and supervision at all times; c) In the circumstances, this created a teacher-student relationship which was invested with a high degree of power and intimacy; d) At the time and in the circumstances when Futcher assaulted and injured the plaintiff, Futcher was employed and/or engaged by them to teach at Trinity Grammar School; e) In the circumstances, the use by Futcher of that power and intimacy to inflict sexual abuse on the plaintiff occurred within the course of his employment and thus the defendant is vicariously liable for that conduct; f) The assault upon and injury to the plaintiff by Futcher occurred in the course of that engagement or employment; g) Alternatively to (f) above, at the time and in the circumstances when he assaulted and injured the plaintiff, Futcher was acting as their agent for the purposes of the pursuit and furtherance of their undertaking, namely, the education of children at Trinity Grammar School and the provision of pastoral instruction and care to the plaintiff; and h) Further and in the alternative to (f) and (g), the defendant took no action in respect of supervising Futcher or removing Futcher from his teaching position and/or school camp supervisor position, following the disclosure by [Green (a pseudonym)] in late 1975, and sexual abuse continued on the plaintiff by Futcher post this date, whilst the plaintiff remained a student at Trinity Grammar School. This failure by the defendant provided the occasion for the wrongful acts by Futcher. 14. At all material times the defendant operated and/or managed Trinity Grammar School through the Principal and teachers and the defendant is vicariously liable for each of the acts and/or omissions of the Principal and teachers which caused injury and harm to the plaintiff. The 'acts' are those particularised in paragraph 6 committed by Futcher."
It can be seen that this portion of the claim does not appear to rely on any of the matters particularised in respect to the allegation in paragraph 12, including in particular, the allegations in paragraphs 12(s) and (t). Notwithstanding, the parties treated these allegations as being relevant to each part of the claim.
The defence put in issue the various allegations in the Statement of Claim to which I have referred above.

B The legal principles underlying the respondent's claim

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').
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.
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".
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].
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 Futcher 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 Futcher, a failure to supervise him and allowing Futcher to organise camps without taking steps to ensure the safety of the pupils at that time. Needless to say these matters involve a consideration of the manner in which Trinity operated at the time.
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: "[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' 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. … [84] In the present case, the appropriate enquiry is whether Bain's role as housemaster placed him in a position of power and intimacy vis-à-vis the respondent, such that Bain's apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment. The relevant approach requires a careful examination of the role that the PAC actually assigned to housemasters and the position in which Bain was thereby placed vis-à-vis the respondent and the other children."
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].
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.

(a) The respondent's statements

Two statements of the respondent are in evidence. The first, the witness statement made to the police on 19 May 2015, and the second, a statement made in these proceedings on 26 March 2018.
In the first of these statements, the respondent stated that he refreshed his memory from earlier statements made to the police on 11 April 1997 and 22 August 1997. Neither of these statements appears to be in evidence.
The respondent stated that the assaults occurred over a period of four years when he was aged between 11 and 15 years.
In his statement of 19 May 2015, he said that when he was in Years 5 and 6 at Trinity in 1974 to 1975, he was friends with a student called Wayne Rowley who was in Year 5 and had Neil Futcher as his teacher. He stated that his Year 5 teacher was Norman Duffy but he had Futcher as his rugby coach and cricket coach.
The respondent stated that Futcher would drive him on some occasions in his "rusty bronze coloured golf car to the sporting ovals at Bressington Oval in Homebush". He said that "there was never any sexual assault that occurred on these trips to and from the sporting grounds" but Futcher would have pornography in his car that he would show him. The respondent stated that he remembered getting an erection when he was looking at some of the material and Futcher would lean over and touch him on the outside of his shorts on his penis and would say "[y]ou like that porn do you" or "[a]re you enjoying that".
The respondent referred to the fact that in his previous statement of 11 April 1997, he mentioned being taken to a camp with Rowley and other boys. He stated that they were taken to the camp by Futcher and Betteridge. He said that the camp area was at Macquarie Fields. He referred to the fact that in his earlier statement he made mention of stripping off his clothing and jumping into the river along with the rest of the children. He stated that he remembered doing this because the children were told by Futcher "it was normal behaviour". He also referred to Futcher walking around and taking photographs of him and other boys.
The respondent stated that he could not remember how he came to play squash with Futcher, but remembered Futcher making an offer to take him to squash courts and teach him to play. He stated that he remembered the squash courts were at Gladesville.
The respondent stated that in his statement of 11 April 1997 he made mention of driving to a block of units under the Gladesville Bridge where Futcher and his mother used to reside. He stated that he knew Futcher's mother resided there because Futcher told him on the way to his house from the squash courts that he lived with his mother. He stated, however, that every time he was taken to Futcher's house he never saw the mother. He stated that he was taken to Futcher's house "about half a dozen times between 1974 to 1975". He said that after the first assault at Futcher's house, Futcher drove him home and just before he got there said to him "[i]f you tell anyone what happened today I will kill you and all of your brothers and sisters. Even if you do try and tell anyone no one is going to believe you". He stated that he remembered saying to Futcher "[i]t's alright I won't tell anybody".
The respondent referred to the fact that in his first statement he mentioned going to a house which was owned by a Ross Horner. He described the house which he stated to be in fact a flat. He said that when he and Futcher got into the flat, Futcher had anal penetration with him but he could not remember where in the flat it occurred. He said that after this he was never again taken to Futcher's unit in Drummoyne.
The respondent said that he remembered that during 1975 to 1976 Futcher would "intercept" him on his way to school on some days, either when he was walking to Epping train station or at Epping train station. He said that he remembered on some occasions, Futcher would be waiting near the Epping newsagency for him to arrive. The respondent stated that Futcher had changed cars from a Golf to "an orange/red escort panel van with bubble windows". He stated that he and Futcher would meet together and spend the whole day together when he would drive him to Lake Macquarie. He said that he was taken to the Macquarie Fields camp area about a dozen times. He stated that between the years 1976 to 1977, Futcher was driving the Escort panel van and began to take him to places such as Galston Gorge. He said that they would pull up at bays to the side of the road used for picnic areas and Futcher used to pull into one of the bays, instruct him to get into the back of the Escort and take his clothes off, where Futcher would have penile-anal intercourse with him. He stated that he went to this location with Futcher "about 30 times". He said that "he hated the feeling" of what Futcher was doing to him.
The respondent stated that in 1976 he left Trinity and for the first few months he did not see Futcher but began to see him about four months after he moved to Barker College. The respondent gave evidence of further sexual assaults on him when he was a student at Barker, but they are not relevant for present purposes.
In his statement in these proceedings, the respondent states that in 1973 he was in Year 5 at Trinity and was close friends with another student, Wayne Rowley, who had also made allegations of abuse against Futcher.
The respondent said that he was "now aware from Futcher's criminal proceedings that Futcher sought permission" from the Reverend Sandars "to organise camps at Macquarie Fields for students who performed well in Futchers' class". He said that Futcher and Betteridge were "the teachers who supervised and ran these camps". He stated that each student in Futcher's class was allowed to bring a friend. He said that Rowley asked him to attend the camp with him.
The respondent stated that he believed that his mother dropped him off at the meeting point which was at the school as with all other camps he had attended whilst at the school. He stated that from there, they were taken to the camp at Macquarie Fields. He said that his recollection was that the first camp was about two to three days long.
He stated that at the camp all the students, including himself, were "encouraged to swim naked" and he remembered Futcher taking pictures of other students and himself while they were naked. He stated that they "all slept together in tents" and that during the camp Futcher entered his tent on occasion and put his hands down his shorts and fondled his genitals. He stated that at the camp Futcher also showed the other students and himself pornographic material and he made fun of and then encouraged them when he saw them becoming physically aroused by the material.
He said that he recalled going to two other camps at Macquarie Fields with other students and Futcher and that he "was abused in a similar manner".
The respondent stated that in 1974 when he was a Year 6 student, Futcher began to interact with his family. He stated that Futcher also started to take him to play squash, usually at Gladesville Squash Courts. He said that after the fourth occasion, Futcher took him back to his home for a shower and that whilst he was showering, Futcher joined him in the shower and stood behind him and anally penetrated him with his penis. He stated that on the way home, Futcher pulled over and said words to the effect, "If you tell anyone no one will believe you. I will kill your brothers and sisters and you're adopted anyway so they won't stand by you".
The respondent said that Futcher anally penetrated him in the shower after playing squash on a number of occasions. He stated that Futcher continued to abuse him further after that, the abuse largely taking place in Futcher's flat in Gladesville.
The respondent said that he also attended "other camps at places like Camp Chakola and the Colo River" usually in the school holidays. He stated that he recalled Futcher being one of the supervising teachers during these camps and he remembered being abused on one occasion at the Colo River camp. He stated that on that occasion, Futcher entered his tent and put his hands down his shorts and fondled his penis and genitals.
The respondent stated that when he started high school, he was living at Carlingford and Futcher intercepted him on his way to and from school. He stated that at the beginning of Year 7 when he was 12 years old, Futcher took him to a brothel. He said that the woman at the brothel asked him how old he was and he told her that he was 12. He said that he then had sex with her.
The respondent then stated that the sexual abuse continued whilst he was at Barker College.

(b) Barbara Mary Anderson

Barbara Mary Anderson (Ms Anderson) is the respondent's mother. She made a statement to the police on 13 May 2015. She stated that the respondent started Kindergarten at the Preparatory School when he was 4 years old and stayed there until the end of Year 6. She said that he then went to the senior school staying there until the end of Year 8 from where he went to Barker College.
Ms Anderson said that she got to know the Principal of the Junior School, the Reverend Sandars very well. She said that she was on the Parents & Citizens Committee and the Reverend Sander's wife was the Vice-President. She stated that Mrs Sandars ran everything at the school.
Ms Anderson said that she recalled that the respondent and another boy were taken out by the Year 6 teacher Mr Simms who took them shopping at Ashfield and after that to his home for afternoon tea. She said that the respondent told her about it but never said anything bad had happened. Mr Simms apparently had a nickname, "Ozzie ostrich". He apparently became upset when he was called that in class and wrote a letter to the respondent which Ms Anderson said was along the lines, "I am very sad to think you would treat me like this, I thought you were my friend, I didn't expect you to be cruel to me like the other boys". Ms Anderson said that on seeing it she became concerned that Mr Simms was far too friendly and familiar with the respondent. She said she spoke to the Reverend Sandars about it and gave him the letter. He said that he would investigate and from memory he told her that he had investigated, there was nothing wrong and Mr Simms was very embarrassed and sorry he had written the letter.
Ms Anderson stated that she did not recall Futcher being one of the respondent's teachers. She stated that during the period that the respondent was at the Preparatory School, "he was just a distant teacher".
Ms Anderson stated that in Years 5 and 6 the respondent would go to school camps. She thought it was twice a year. She stated that he used to go to Chakola in the Kangaroo Valley and possibly Colo. She said that she could not recall which teachers took the respondent on camps. She stated that he seemed to enjoy them and always wanted to go on them.
She stated that after Year 6 the respondent went to the senior school until the end of Year 8. She stated effectively that the reason was her dissatisfaction with certain aspects of the school under the new Headmaster, Mr West. However, the matters which she raised were not relevant in any way to the facts of the present proceedings.
Ms Anderson stated that she spoke to the Reverend Sandars in early 2007 when she invited him and his wife to her house in Bowral for afternoon tea. She said that she said to Sandars "by the way did you know that Neil Futcher was attacking boys at the school and attacked Rob?". She said that the Reverend Sandars replied "yes" and then "he just shut his mouth tight, like he didn't want to say anything else". She said that he did not say another word about it and she did not ask any further as she could see he was not going to talk about it. She said she was "just horrified". She said that she had not heard or spoken to him since that day.
Ms Anderson made a further statement on 20 March 2018 for the purpose of the present proceedings. She stated that she recalled Futcher was a teacher at the school when the respondent was a student there. She repeated that she recalled that he used to go to camps organised by the school. She stated that she remembered that the camps were mentioned in the weekly school newsletters. She said that she recalled the respondent talking about the camps with her. She remembered that there was a camp which took place at Chakola in the Kangaroo Valley and another one that was held in the Colo River area.
Ms Anderson said that she recalled dropping the respondent off at the school for him to attend the camps. She said that on some occasions, he would stay at the school after class and then be taken to a camp. She said that he and the rest of the class would gather at the school and she recalled there being a school bus with the school's logo that would take them. She stated that she recalled that on all these camps the students were supervised by a group of teachers at the school.
Ms Anderson stated that any parent who wanted to send their child to camps had to sign a permission form on the school letterhead. She said that she and her husband would never have let the respondent go on any camp without filling out a permission form. She said that her understanding was that any camp the respondent attended was under the auspices of the school. She said that she would not have let the respondent attend a camp where he was transported in a car and not a bus and that if she had known that there would only be one teacher supervising at camp, she would not have let the respondent attend.

As I indicated above, Mr West succeeded Mr Wilson-Hogg as Headmaster of Trinity. He made a statement to the police on 28 April 2015, some eight months prior to his death.
In his statement, Mr West said that he was appointed as Headmaster of Trinity in 1974, taking up the role in January 1975. He said that prior thereto he was the Senior Classics Master at The King's School.
Mr West stated that in 1975 the Master of the Preparatory School was the Reverend Sandars who had been at the school since 1964.
He stated that Futcher was appointed in 1973 as a Master at the Preparatory School. He said that he was appointed by the Reverend Sandars and that Mr Wilson-Hogg endorsed the appointment.
Mr West stated that the policy in place at the time he became Headmaster was that boys from Transition to Year 2 were taught by women and boys from Years 3 to 6 were taught by men. He said that in those days the teachers taught all subjects.
Mr West stated that he "knew that some members of the Preparatory School staff arranged camps in the school holidays with the support of parents and the boys". He said that he did not know how the camps were advertised. He said that in the 1970s, during the time of Futcher's employment, he was not aware of Futcher specifically taking Trinity boys away on school camps at weekends or during school holidays, although he "did know that some camps at Colo River were arranged". He stated that he was not aware who arranged the camps.
Mr West said that at the time the respondent left Trinity, there was nothing said to him or brought to his attention of Mr Anderson having been subjected to any sexual or physical abuse. He said that he had no memory of having ever socialised with Futcher. However, his wife and he may have had him over for dinner at their home as their guest. He said that he had no knowledge of Futcher sexually or physically abusing Trinity students or other boys.

(d) Statements of witnesses obtained as a result of the investigations by the solicitors for Trinity

Mr Patrick Gordon Thompson of Thompson Cooper Lawyers Pty Ltd (Mr Thompson) was instructed to act for Trinity in February 2016. He stated that he formed the view that all available Preparatory School staff members should be located and interviewed about the subject matter of the allegations and whether they had any contemporaneous knowledge about offending behaviour on the part of Futcher. He stated that his review of the staff lists confirmed a large number of individuals worked at the Preparatory School across the relevant period. As a result, he instructed an investigator, Mr Allen Fitzsimons of Crawford and Company (Australia) Pty Ltd (the investigator), to carry out certain investigations. The investigator's first report was dated 6 June 2016.
In his first report, the investigator stated that he had identified a significant number of staff employed at Trinity during the 1970s, having focused his inquiries to date on male staff who were likely to be involved in camps during the 1970s. He recorded, consistent with the evidence of Mr West, that female teachers were restricted to teaching Preschool, Kindergarten and Years 1 and 2, whilst male teachers taught Years 3 to 6.
He stated that the two groups, infants and primary students, went on separate camps.
The report stated that the investigator only became aware of one Munjon newsletter dated January 1979, but found an advertisement for Munjon weekend camps at Colo River in a Trinity Preparatory School magazine in 1977 (see [238] below).
The report stated that the investigator had received conflicting details about the number of classes in each grade. The report stated that the school class lists for Years 5 and 6 indicated three classes for each of those grades. It stated that in addition to classroom teachers, there was a librarian, a drama teacher, a music teacher, a PE teacher, a religion teacher, administration staff and a bus driver. The report stated that from the investigations, it was understood that all grades from Kindergarten to Year 6 went on an annual school camp during the school term, accompanied by their respective class teachers. It stated that these camps were midweek for Years 2 to 6.
In summarising the outcome of the report, it was stated that the former staff members spoken to recalled Futcher teaching in Year 5 or Year 6 as a classroom teacher and as a rugby/cricket coach during the period he was at Trinity.
The report referred to a letter from the Reverend Sandars to Mr West dated 10 August 1977, in which reference was made to Futcher's resignation being "timely" and that his departure from the school "will help remove a degree of tension and discord which has been engendered by him amongst the staff and certain groups of parents during the past two years". In that context, the report referred to a letter from Futcher to the Reverend Sandars dated 30 June 1977, which related to a complaint about Futcher instructing pupils to be physically aggressive during a rugby match. Notwithstanding, the investigator found no evidence of any other complaints having been raised up to Futcher's departure at the end of 1977. This is consistent with the statements from former teachers to which I refer below.
The letter in question is in evidence and its content makes it clear that the complaint concerned the fact that Futcher had apparently instructed the Trinity team to play aggressively. Futcher's response was effectively that the instructions he gave were within the rules of the game, his justification being that "the boys' only chance in the game was to out-tough them [the opposition] as they had neither the skill nor brainpower to do otherwise".
Whatever the merits of the complaint, it plainly had nothing to do with sexual or physical assaults on students.
The report also stated that a statement provided to police by a former student John Stuart, recalled Futcher calling his home after he left Trinity, asking his mother whether he would like to go on a "Trinity Grammar school camp". He stated that Mr Stuart recalled Betteridge picking him up from his home and taking him to the Colo River camp.
In the course of his investigation, the investigator obtained statements from a number of former teachers, details of which are summarised below: (i) Mr Garry Connors
Mr Connors provided a signed statement dated 2 June 2016. He stated that he was employed at Trinity for 41 years from 1973 to 2014. He stated that for the first seven or eight years of his employment, he taught Year 3.
Mr Connors stated that from his recollection there were only two Year 5 and Year 6 classes in each school calendar year in Trinity during the early 1970s. He recalled, although he could not be certain, that the teachers who took Years 5 and 6 were Norm Duffy, Betteridge, Futcher and Brian Simms. He stated that Norm Duffy passed away in March 2016.
Mr Connors said that he had no knowledge or understanding of any sexual abuse at the time that Futcher was employed at Trinity. He stated that he did not teach with him and had very little to do with him, although he stated the students called him "Futcher the Butcher" for his use of the cane.
Mr Connors stated that for his first two or three years at Trinity he went on school camps. He stated that he recalled one was at "Chakola in the Kangaroo Valley and the other was to Mile (sic) Lakes/Barrington Tops area". He thought it was a Jim Jockell that organised the camp to Chakola. He stated that he did not recall Futcher on any of the camps he went on.
Mr Connors stated that at the time he "didn't give much thought to whether the school had an interest/involvement in the camps that were held during the school vacation". As far as he was concerned, "Trinity had given approval as letters were sent home with students informing their parents about the camps and therefore the camps were done with the knowledge of Trinity". Mr Connors stated that he was "of the understanding that it was common for teaching staff to take students on camps during school holidays". However, he stated that he did not recall these camps "being part of the Trinity extra school curriculum" and believed "that they were held during the school holidays as a private arrangement between the teaching staff that were organising them and parents that wanted their child to attend".
Mr Connors said that he did not recall camps called Munjon or any camp to the Colo River, although immediately after making that statement he said that "[n]ow that I think of it I recall some camps at the Colo River at the time". He said "it rings a bell" but that he never went to camps on the Colo River.
He stated that his understanding was that "letters would have gone home with the boys to the parents advertising the camp", informing them of an activity for the school holidays and inviting parents to enrol students in the camp.
Mr Connors had previously made a police statement on 2 June 2015. He referred again to the Chakola camp and stated that he did not remember Futcher ever going on a camp that he attended. He said that he thought there may have been 12 to 15 boys that attended the camps and that they may have travelled together on a bus but he could not be sure.
Mr Connors stated that during his teaching at the Preparatory School, most sporting activities took place at Bressington Park at Homebush where the Preparatory School leased the ovals from the Council. He stated that the students were "normally bus[s]ed to the school grounds". He stated that "staff were expected to travel on the buses to supervise the students". He stated that he never drove his own car or had students travel with him in his own car.
Mr Connors said in the police statement that he knew of nothing of Futcher's activities outside of the school and did not know of him playing squash or ever taking any students to play squash. He did say that he knew that in 1976 "Futcher owned a VW Golf" which he thought was "chocolate brown in colour".
Mr Connors said that he had no memory of why Futcher left the school or where he was going. He said that he cannot recall the Reverend Sandars saying anything to him about why he was leaving when he did. He said that the teachers who taught alongside Futcher in the upper primary, as far as he could recall, were Norm Duffy, Brian Simms, Dennis Pogson and Betteridge.
Mr Connors stated that while teaching at Trinity he was not aware of any complaints or information involving incidents of sexual assault or abuse perpetrated by Futcher upon any students.
Mr Connors also swore an affidavit for the purpose of these proceedings. He elaborated to some extent on the camps which he attended. He stated that he recalled Trinity organising overnight excursions, for example, to Jenolan Caves. He stated that those camps were in school term and part of the Trinity curriculum. He stated that he recalled that James Jockell was an organiser.
He stated that "[t]here were other camping trips which were not organised by the School". He recalled that in his first or second year teaching at Trinity, he was asked by John Christie and Richard Johnson to go on a camping trip to Barrington Tops with Year 3 students. He stated that the trip was not part of the school curriculum and was not conducted in term time. He stated that it was conducted in school holidays with the consent of the boys' parents. He stated that the camps he recalled going to at Chakola were also at holiday times. He stated that he could not remember how the children arrived at the camp.
Mr Connors said in his affidavit that he had "no memory of the name 'Munjon'" and that he could not remember Futcher at any of the holiday camps he attended.
He stated that "some holiday camps occurred at the Colo River" but his recollection was that they were on weekends. He recalled that one such camp was organised by Betteridge. He did not attend that camp. He stated that his recollection was that "any camp to the Colo River was with children from Grades 5 and 6".
Mr Connors stated that the Preparatory School was "entirely run by the Reverend Sandars". He stated that he also operated as the Preparatory School Chaplain and took divinity classes. He described the Reverend Sandars as "articulate, personable" and said that "children looked up to him". He stated that the Reverend Sandars would frown on staff developing friendships with parents.
Mr Connors stated that there were three aspects of sport at Preparatory School. He said that there was physical education, one class a week, the classes being on school grounds. He stated that one day each week after lunch there was a sports afternoon at Bressington Oval or Strathfield Park, and one day each week there was after school team training at Bressington Oval or Strathfield Park. He stated that he recalled that children would walk to Strathfield Park which was within 10 minutes of the school or go by bus to Bressington Oval. He stated that "[i]t was not normal for teachers to drive children to the ovals", stating that "[t]he children were always bussed back from Bressington Oval or walked back from Strathfield Park". He stated that he could not recall teachers driving children to Strathfield Park or Bressington Oval but it was "possible" that they did. He said that he "did not consider it odd or a danger to children if a teacher drove them to a sports afternoon or to after school team training". He stated that he "thought the teacher was doing a good deed" and that "more often than not there would be two or three boys in the car". (ii) Mr James Jockell
An unsigned statement was prepared in discussions between Mr Jockell and the investigator.
Mr Jockell said that he was employed at Trinity from about 1975 to 1982. He stated that he recalled Futcher as a classroom teacher and that he was there until the early 1980s.
He stated that he had "no knowledge of any abuse or inappropriate behaviour" by Futcher.
Mr Jockell stated that Trinity was divided into "two different buildings", he was in one and Futcher was in the other block. He stated that the older children were in the block where Futcher taught.
Mr Jockell stated that he never went on any school camps with Futcher. He recalled that there were some parents who were keen to pay for their kids to go away on camps during the school vacation periods. He stated that this was "lucrative" for teachers who wanted to take children on vacation. He stated that "[i]t was common in many schools at the time" for teaching staff to take children on a camp during the school holidays. Mr Jockell said that to his knowledge, it was "a private thing - a private arrangement between the teacher and the parents" and that "the school wasn't involved". In his unsigned statement he said "I would categorically dispute the allegation that Trinity was in any way involved in organising camps for students during school holidays". He stated that Trinity never publicised any of these camps.
Mr Jockell stated that he was not familiar with the term Munjon. He said that he had never heard of any Munjon camps.
Mr Jockell told the investigator that he agreed to return his statement signed, but it was not returned.
In May 2017, he emailed Mr Thompson stating that he was only prepared to provide information on the basis that the conversation not be recorded or taped in any way and that a guarantee was given that his name would not be introduced into any aspect of the proceedings. Mr Thompson sent a draft affidavit to him based on the information obtained by the investigator. However, Mr Thompson was informed on 8 July 2017 that Mr Jockell had suffered a stroke while travelling in Canada and was unable to respond. (iii) Mr Wesley Tritter
Mr Tritter signed a statement and also swore an affidavit. In his statement dated 13 June 2016, he stated that he was employed at Trinity from February 1972 to May 1977, teaching Grade 4 and drama. He stated that he left Trinity to return to Canada.
Mr Tritter stated that while teaching at Trinity he recalled that Grades 5 and 6 were on another level of the building to where he was teaching Grade 4. He said that he could not recall exactly who taught Grades 5 and 6 but Norm Duffy and a Mr Landers came to mind.
Mr Tritter said that he recalled Futcher as another teacher at Trinity. He stated that sometime in 2015, he heard allegations against Futcher and another teacher, Betteridge, from two of his colleagues from Trinity that kept in touch with him, Denise McEwen and Christine Brown.
Mr Tritter stated that his impression and recollection of Futcher was that "he was very loud, crude and aggressive" and "did far too much caning of the boys". However, he never imagined that Futcher was sexually abusing boys and no one ever mentioned anything like this to him. He stated that he never recalled speaking to the Reverend Sandars about the extent to which Futcher caned the students.
Mr Tritter said that he did not coach the students for sport. He stated, however, that he recalled going on a camp to a place called Chakola in August during his first year at Trinity. He said that he did not recall Futcher being on that camp, although he recalled Garry Connor and Brian Simms being there.
Mr Tritter said that there was "a bus load of kids" and he recalled that Trinity had its own bus. He stated that on arrival back at Trinity, "the parents were there to greet the boys as they got off the bus".
He said that he thought a mix of grades went on the camps. He stated that the school camps were held in August each year during the school holidays. Mr Tritter said that he had no recollection of camps called Munjon but only knew of the Chakola camps, which he understood to be "sponsored by or organised by Trinity".
In his affidavit, he added that only Trinity students attended the camps at Chakola while he was there and that Chakola was an organised campground and the students stayed in tents. He said that he did not attend any school camps held at any other locations. (iv) Mr James Southward
The investigator took a draft statement of Mr Southward following a telephone conversation. However, Mr Southward declined to co-operate further because of his health problems. Mr Thompson deposed that Mr Southward sent him a letter from his cardiologist to his general practitioner stating that it would be best if Mr Southward avoided "undue psychological stress".
However, in his draft statement Mr Southward said that he was employed at Trinity from 1969 to when he retired in 2007, initially as a piano teacher in the Senior School and then as a music teacher in the Preparatory School from 1970 until his retirement.
Mr Southward said that he was initially contacted by police about Futcher, but he told police he did not want to give a statement as he had nothing of relevance to say about him. He also said that he had heart problems which was why he retired in 2007 and that he did not want to get involved in anything that might be stressful.
Mr Southward stated that school camps were compulsory up to when Occupational Health and Safety Regulations came into force. He said that the main camps in which he was involved were for Year 6. He said that he believed "there were weekend camps at Colo but that was a private thing". He said that he thought that those excursions were optional and held over school holidays. He said that he could not recall Futcher being heavily involved in the camps. He said that he could not say whether Futcher went to the camps.
Mr Southward said that he also recalled Crusader camps that were organised by a church group. The people involved in those did not go on weekend camps to the Colo River.
He stated that the school camps were "very well run".
Mr Southward said that the Master of the Preparatory School was the Reverend Sandars who was "very good with the children and parents". He stated that during the 1970s, the Reverend Sandars only allowed female teachers for Kindergarten to Year 2 and male teachers for Years 3 to 6.
Mr Southward said that the Reverend Sandars was "a very fine person but somewhat of an egomaniac" and a person who did not like things to go wrong. (v) Ms Christine Diamond
Ms Diamond signed a statement on 20 May 2016 and swore an affidavit in the proceedings on 24 July 2017.
In her statement she said that she was employed at Trinity for 39 years from 1972 to 2010.
She stated that when she commenced at Trinity she was a classroom teacher and remained in that position until 1982 when she was appointed Director of Early Childhood in addition to her teaching duties.
She stated that she had no knowledge of any staff member at Trinity being involved in behaviour involving sexual abuse of students and no concerns with any of the staff regarding their interactions with the students.
She described the school as "a very different place in the 1970s to how it is run now". She said that "in the 1970s it was run by one person". She said "young teaching staff were not involved in confidential matters" and nothing of a confidential nature was ever discussed in the staffroom in her presence.
She stated that the Preparatory School was run by the Reverend Sandars and "virtually run as a separate entity" to the high school. She said that the overall headmaster was Mr Wilson-Hogg but at the Preparatory School "we had nothing to do with the senior school". She said that Trinity (referring to the primary school) was small and run by the Reverend Sandars who permitted only female staff to work in infants which comprised of pre-school, Kindergarten, Years 1 and 2 and male staff to teach Years 3 to 6.
Ms Diamond said that the school had camps but she did not go on any. As far as she could recall, there were school camps every year for Years 5 and up. She stated that she thought there may have been camps during the school holidays but she did not know who organised them. She said she did not have any memory of a camp called Munjon.
Ms Diamond stated that the Reverend Sandars "ran a one man band school" and "liked to be in total control". He had a deputy she thought, but the deputy did not have much authority.
Ms Diamond recalled that the school had a "little funny looking square bus" which sat 25 to 30 boys and was used to take the children to sport.
She stated that she remembered Betteridge from her early years at Trinity. She remembered that "he was nasty to the boys with the cane". She also said that she recalled Futcher and that "he used the cane a lot - worse than Neville Betteridge". She recalled that some of the female teachers complained to the Reverend Sandars concerning the use of the cane but there was no result.
In her affidavit, she stated that her recollection was that after she commenced at the school in 1972 the Preparatory School was under the total control of the Reverend Sandars. Subject to that, she repeated in substance what she said in her earlier statement. (vi) Ms Christine Ballard
A draft statement was prepared by the investigator following an interview with Christine Ballard. The statement was not signed but Ms Ballard subsequently swore an affidavit in these proceedings on 20 July 2017.
In her draft statement, Ms Ballard stated that she was employed at Trinity from 1977 to 2008. She stated the class she taught was Kindergarten which was for 4 year olds. She said the 5 year old students were in what was called Transition and then they went from Year 1 up to Year 6.
Ms Ballard said the Trinity Kindergarten and Transition classes were held in a separate building. She stated that she remembered Futcher as a teacher but had very little contact with him and he was either a Year 5 or Year 6 teacher.
Ms Ballard stated that she recalled that she went on school camps nearly every year until 1997 or 1998. She stated that the camps that she went on were for Transition and Year 1 students. She stated that she recalled those camps were at Deer Park in the Royal National Park. She stated that the camps were held once a year and left from Trinity on Saturday morning and returned on Sunday. She stated that the parents were charged for the camps and it went on their bill. She stated that "nearly every child went on the camps". She said that after two years the venue was changed to Springwood in the Blue Mountains.
Ms Ballard said that she did not have any recollection of camps called Munjon. She said that she was not included in those. She said, however, that she knew there were camps to the Colo River but she was not involved as she was with the younger students. She could not say if those camps were in school term or not.
In her affidavit, she recalled that the camps she went on were organised by the class teachers or the Reverend Sandars, although she could not recall which. Ms Ballard stated that she was employed following an interview with the Reverend Sandars who offered her the position but explained that she must "now have an interview with the Headmaster" who she stated to be Mr West. She was employed in 1977.
Ms Ballard said that she had "no concerns about Futcher and heard nothing of concern about him". (vii) Ms Christine Brown
Ms Christine Brown made a statement to police on 26 June 2015. She signed a statement prepared by the investigator dated 9 June 2016 and swore an affidavit on 19 July 2017.
In her statement to the police she stated that she commenced working at the Preparatory School in 1975 teaching Year 2 students. She said that Futcher was already employed at Trinity when she started. She said that he only taught at the primary school.
She stated that Futcher had a reputation of caning and belittling the students. However, she said that she was not aware of any complaints made by students or parents about him.
Ms Brown said in her police statement that Futcher and Betteridge were involved in taking students on weekend camps. She said that the name Chakola was familiar as a camp name but she did not recall camps being held during the week and was unsure about school holidays.
In her statement of 9 June 2016, she said that in March 2016 she attended a funeral for Norman Duffy.
So far as Futcher was concerned she stated that he taught Year 5 from memory. She said that she could not recall if he taught other grades.
In her statement she repeated that she did not know if there were any official Trinity school camps at weekends or held during school holidays other than the camps for infants in Kindergarten and Years 1 and 2. She stated that on these camps the students travelled on a bus and their parents picked them up from the camp or from Trinity. She stated that she recalled school camps called Chakola which were held on weekends or during school holidays. She stated that she remembered that Betteridge drove the bus to the camps but she could not recall who else might have been involved in the Chakola camps.
Ms Brown said that she did not recall the name Munjon camp and had no recollection of any camps to Macquarie Fields or Georges River.
In her affidavit sworn on 19 July 2017, Ms Brown said that she "had no suspicions or concerns about Futcher's interaction with students" during his time at Trinity. She said that she was not aware of any complaints about him during his time at Trinity. She stated that she had no knowledge of Futcher going to camps saying that she did not go to any camps involving children above the infant years during the time that Futcher was employed at Trinity. She said this situation changed many years down the track when she moved to being a primary teacher.
She repeated in substance what she had said about the camps in her statement. She stated that the Reverend Sandars interviewed her and at the conclusion of the interview offered her a position in the infants department. She said that she attended an interview with Mr Wilson-Hogg but it was merely a formality as she had already been offered the position by the Reverend Sandars. (viii) Ms Robyn Harris (née Cooper)
Ms Harris stated that she was employed at Trinity from 23 May 1977 until May 1995. Her appointment thus post-dated the respondent's departure from Trinity.
She stated that she recalled Futcher as a classroom teacher but she said that "he wasn't at Trinity for long" after she started. Ms Harris stated that she did not go on school camps initially but when she did go it was for Year 1 students. She said that the infants camps she went to were at Glen Davies, past Lithgow. She said that there was always a bus transporting the students and staff to camp and back to Trinity.
Ms Harris said she did not recall camps to or called "Chakola", "Colo River", "Lake Macquarie", "Macquarie Fields" or "Georges River" camps.
Ms Harris said there were no school camps held during the school holidays. Ms Harris stated that "camps held during school holidays were quite separate from the Trinity school camps, such as the tours that Neville Betteridge organised to Central Australia". (ix) Mr John Christie
Mr Christie signed a statement on 11 August 2017. He said that he was employed at Trinity between about 1971 to the end of 1974. Mr Christie said that he was employed at Coogee Boys Preparatory School when he was told about the vacancy at Trinity. He said that he attended a sporting event at Trinity and the Reverend Sandars was there. He said he spoke to the Reverend Sandars in a stairwell about the vacancy and the Reverend Sandars asked essentially when he could start. He stated that there was no formal interview. Mr Christie stated that he taught for one year as a Special Education teacher, and otherwise taught Year 4 or 5.
Mr Christie stated that he recalled Futcher as a fellow colleague at Trinity, his recollection being that Futcher came to Trinity after him and was there when he left.
Mr Christie said that he did not recall any camps organised by Futcher. He stated that he recalled one camp during school holiday time that he organised when he took some students away for about week to Myall Lakes. He stated that he recalled organising this camp himself with the knowledge of the Reverend Sandars. He said that he had the Reverend Sandars' permission to contact the parents to make the offer to take the children on camps during the school holidays.
Mr Christie said he also recalled going on another camp to Kangaroo Valley which was organised through a business called Aus Venture which had a campsite at Kangaroo Valley. He stated that he could not recall who from Trinity would have organised the camps with Aus Venture.
Mr Christie said that Futcher did not attend the camp he organised to Myall Lakes or the one he went on at Kangaroo Valley. (x) Mr Mark Hines
A statement for Mark Hines was prepared following a telephone discussion between him and the investigator. However, according to the investigator he declined to sign the statement, stating that upon reflection, he "felt a little uncomfortable with these matters".
In the draft statement Mr Hines stated he was employed at Trinity from the beginning of 1976 to the end of 1987.
He recalled that Futcher was either a Year 5 or Year 6 teacher while he was a Year 3 teacher. Mr Hines stated that he was "not aware of anything inappropriate" occurring when Futcher was at Trinity.
Mr Hines said he had "a vague recollection of a camp called Munjon/Colo River Camp". He said that he thought it later became part of the school outdoor education programme. He said that he never went on those camps and did not recall any camp in the Kangaroo Valley. (xi) Mr Eden Scott
Mr Eden Scott made a statement on 27 July 2017. He said that he was employed at Trinity from 1976 to 1980, initially as a Year 4 teacher and for the last couple of years also as an assistant art teacher.
Mr Scott said that he knew Futcher and so far as he was aware "his activities were well and truly above board".
He stated that Futcher had a very close relationship with Betteridge.
Mr Scott said he did not have any recollection of school camps and said he did not attend any school camps and had no recollection of a camp called Munjon. (xii) Mr Brian E Simms
Mr Simms made a statement on 9 August 2017. He said he was employed at Trinity between 1971 and 1977.
Mr Simms said that the Reverend Sandars was head of the Preparatory School when he started and was the person who employed him. He said that the Headmaster at Trinity was Mr James Wilson-Hogg who retired in 1974 and Mr West took over from him.
Mr Simms stated that his employment was confirmed whilst he was in Canada and when he arrived at Trinity at the beginning of 1971 he attended a meeting with Mr Wilson-Hogg but that was a formality as Mr Wilson-Hogg had accepted the Reverend Sandars' decision to employ him.
Mr Simms stated that he remembered Futcher as a fellow colleague who arrived at Trinity about three years after him. He said that both he and Futcher taught Year 6, although he thought that he had Year 5 when Futcher had Year 6.
Mr Simms stated that he recalled school camps. He said that he organised the school camps while he was at Trinity. He said that he "organised for Trinity to send out letters to parents notifying them of the camps". He said that he "took those school camps to Chakola at Kangaroo Valley every year during vacation time". He stated that from recollection, they went in August in the school vacation period and John Christie was the main teacher who went with him.
Mr Simms stated that Futcher never came on camps to Kangaroo Valley. He said that the last camp that he was involved in was in May 1977 during vacation time when he took the boys on vacation before his employment ended.
Mr Simms stated that the camps that he took to Chakola were "always during school vacation time otherwise it would have been too disruptive for Trinity" which "would not have functioned without all the teaching staff present".
Mr Simms said that he thought that Futcher and Betteridge "started some other camp" north of Sydney somewhere, stating that Colo River rang a bell. Later in his statement, he stated that he now recalled Futcher and Betteridge "taking boys on a Colo River camp in August time". That may have been 1976, having regard to the fact that Mr Simms left sometime in 1977. The class list seemed to show that Simms left in the first term of 1977 which is consistent with his statement. That would at least seem to suggest there a camp to Colo River in 1976. He stated that he thought Futcher and Betteridge took some Trinity children and children from other schools and although he was "not completely certain", he thought that it "wasn't a Trinity organised camp". He stated that his recollection was that Futcher and Betteridge "organised separate camps". He stated that "they went up the coast" from what he could recall.
He stated that the camps he organised to Chakola in the Kangaroo Valley were only for Trinity students and organised by Trinity and held during school vacation times.
Mr Simms stated that he did not have any recollection of camps called Munjon. He stated that his recollection was "the Colo River camps took over" after he had left but it was for different schools and not solely for Trinity students. He stated that the Colo River Camps "possibly overlapped a bit with Chakola Camps" but he could not recall exactly.
Mr Simms stated that the Reverend Sandars was "very hands on" in the supervision of staff. He described the Reverend Sandars as "a very diligent Head and was all the time pretty much on the ball".
Mr Simms stated that he recalled the Trinity school grounds were located at Bressington about two miles from the school. He said that the students went by bus. He stated that "no one would have travelled by car to the weekday training" and "if we went to Bressington we would all go together", sometimes having to "do two trips if there wasn't enough room in the bus".
Mr Simms stated that he did not see or hear anything to alert him to the possibility that the boys may be at risk of being sexually abused by Futcher during the time that he was at Trinity. (xiii) Mr Dennis Pogson
Mr Pogson signed a statement on 20 August 2017. He said that he was employed at Trinity for nine years between 1973 and 1982. He said that he taught Year 4 for two years, Year 3 for one year and Year 5 for four or five years.
Mr Pogson stated that he attended an initial interview with the Reverend Sandars and then a final interview with Mr Wilson-Hogg who confirmed his appointment.
Mr Pogson said he recalled Futcher. So far as he recalled, Futcher came to Trinity the year after him and "lasted about two years".
Mr Pogson said that he did not know of any camps organised by Futcher. He did not know whether any camps which were held were official Trinity camps. Mr Pogson stated that "Trinity did have Grade trips" and he recalled attending a Year 3 trip to Jenolan Caves.
Mr Pogson said that staff and students travelled to Bressington Park for football or cricket training after school. He said "students were not supposed to travel by car", "they were supposed to go by bus and return by bus". He stated to his recollection that "this is what happened". (xiv) Mr Michael Perini
Mr Perini signed a statement on 22 August 2017. Mr Perini was employed at Trinity between 1972 and 1973. The Reverend Sandars offered him the position and he did not have any other interview.
Mr Perini said he did not believe he knew Futcher but the name sounded familiar. He remembered that the Reverend Sandars was head of the junior school and Mr Wilson-Hogg was head of the secondary school. He said he did not think he ever met Mr Wilson-Hogg.
Mr Perini said he taught Year 5. He stated that Mr Duffy started at Trinity the same year as him. He said the Year 6 teachers were Betteridge, Mr Brand and Norm Skinner.
Mr Perini said he did not have any recollection of camps, saying he did not think they happened in those days.
Mr Perini said that when the Reverend Sandars was on leave "he left Norm Duffy in charge".
In relation to sporting activities, Mr Perini said that the staff and students used to get the school bus to Bressington Park and return to Trinity by bus. The parents collected the boys on their return to Trinity or they made their way to the local train station.
Mr Perini said he saw nothing to alert him to potential risk of sexual abuse, although he stated that "Norm Duffy was very cuddly around the students" which "would be unheard of now". He said it did not alarm him as Mr Duffy impressed him as being "a very fine teacher". (xv) Mr Joergen Rasmussen
Mr Rasmussen signed a statement on 10 September 2017. Mr Rasmussen stated that he received a letter from the Reverend Sandars thanking hiM for his application on 23 March 1977, and was interviewed by the Reverend Sandars on his appointment. He was not interviewed by anyone else and he had never heard of Mr Wilson-Hogg. His statement did not specify the years of his employment at Trinity. The first report by the investigator specified that he had been identified in the 1977 staff photo.
Mr Rasmussen said he recalled Futcher.
Mr Rasmussen stated that he recalled that Betteridge invited him to participate in a camp called "The Munjon Youth Camp" on the Colo River. He said he kept an advertisement for the camp. The advertisement described the camp as "Munjon Youth Camp on the Colo River" and summarised the camp's activities as shooting, orienteering, swimming, caving, rock climbing and archery. The advertisement did not identify the organisers or promoters of the camp.
Mr Rasmussen thought the Munjon camp was "a weekend camp" and "a private arrangement that had nothing to do with the school". He annexed a photograph showing everyone that joined the weekend camp but only recognised himself, Betteridge, one Trinity boy and the camp leader. He said that he thought the photograph was taken in either 1977 or 1979, most likely in 1979.
Mr Rasmussen stated that Futcher did not participate in that camp and he had no knowledge of his involvement in any other camp.
Apart from referring to incidents which seemed to demonstrate the Reverend Sandars' enthusiasm for caning, Mr Rasmussen was able to say little about how the Reverend Sandars ran the school.
Mr Rasmussen stated that the sporting teams he trained or coached "always went by school bus to Bressington Park". He stated that he had never seen or heard of any teachers that drove boys to training.
Mr Rasmussen stated that he never saw or heard anything to alert him to the possibility that boys were at risk of being sexually abused by Futcher or any other members of the teaching staff during the years he taught at Trinity. (xvi) Mr Richard Johnson
Mr Johnson signed a statement on 11 September 2017. He said he came to Australia to take up a position with the NSW Department of Education at a school in Wollongong. He left the Department and took a job at an outdoor pursuits centre in Kangaroo Valley as an activity guide.
He stated that whilst working there a school camp from Trinity arrived and he was involved in providing the children with activities. He stated that he recalled the teacher in charge was John Christie. He said that "it was definitely a school camp" and he recalled it was in school term.
Mr Johnson stated that sometime after he was contacted by the Reverend Sandars who invited him for an interview for a teaching position at Trinity. He stated that he recalled attending the meeting with him and that he was not interviewed by anyone else.
Mr Johnson said that he recalled taking over a Year 3 class when he started. He stated that he recalled Futcher and had a nickname for him "Futcher the Butcher". He stated that "it was just cockney slang - a bit of fun". He recalled that Futcher was friends with Betteridge and Terry Simpkins, who was a teacher at Barker College.
Mr Johnson said that he did not recall going on any camps with students whilst he was at Trinity except on a kayaking camp to Myall Lakes organised by John Christie. The only other camp he recalled with Trinity students was the one at Kangaroo Valley before he was employed as a teacher.
Mr Johnson said that the students travelled to sports training by school bus to Bressington Oval.
Mr Johnson stated that he "never saw or heard anything" to alert him to a potential risk of Futcher sexually abusing the boys.

(e) Other evidence surrounding camps

At the time the alleged incidents were said to have occurred, a weekly Bulletin of the Preparatory School Prep News was produced, generally under the hand of the Reverend Sandars. The Bulletin for the week commencing 31 May 1974 contained the following information: "CHAKOLA VACATION CAMP During the past week an information sheet and brochure concerning the proposed holiday camp for Senior Prep Boys to be held at Chakola has been distributed. It is planned that this Camp will be held in the initial week of the August Vacation and will be organised by Form Masters of the Senior Prep classes under the direction of Mr. Brian Simms. Those parents whose sons have been to Chakola Camp will know the value and enjoyment that is to be derived from such an experience, and we know that the demand for places in this venture will be heavy. Any parents who may wish to make further inquiries concerning this holiday camp are most welcome to contact Mr. Simms during School hours on the School telephone number. We do advise parents who are interested in sending their boys with the School party to Chakola to make an early decision so as to avoid disappointment."
The Bulletin for the week commencing 14 June 1974 also made reference to the Chakola vacation camp. The reference was in the following terms: "CHAKOLA VACATION CAMP As mentioned in the Prep Bulletin two weeks ago it is proposed that senior members of our Staff will be conducting a vacation camp at Chakola in the Kangaroo Valley in the forthcoming August vacation period. We wish to thank those parents of our Senior Prep Boys who have been so punctual in their response to the applications that have been sent home via their sons, and it is with pleasure that we announce a full compliment for this vacation camp. The boys who intend going to Chakola will derive great benefit from their days in this fascinating setting and in due course full details and requirements will be circulated to those parents concerned. Should there be any other queries concerning Chakola and this proposed vacation camp a telephone call to Mr. Simms should clarify any doubts or queries that parents may have."
A document titled "A message from sixth class" contained in the "TP Magazine" dated June 1974 contained the following information: "Indeed many of us have had the opportunity of attending holiday camps run by the school and other organisations; and of also participating in interesting educational tours. In the light of last year's highly successful trip to the Warrumbungle Mountains, it was decided to organise another tour this year - a seven day stay in the Wagga district with visits to many places of interest. End of Term excursions must also be mentioned - a welcome relief to the tensions of the past term. Spending a week at Chakola perhaps proves the most popular of our holiday camps. Nestled in the heart of the magnificent Kangaroo Valley, it is a Wild Life Refuge. It provides unlimited scope for many varied activities… Our hope is that boys, as they move into the highest classes, will take advantage of the various vacation trips and camps. You won't be disappointed."
The Bulletin for the week commencing 19 July 1974 contained the following information concerning vacation camps: "VACATION CAMPS Each School vacation a large number of our boys attend various vacation camps and the School encourages parents to support those that are officially recognised by our School. The response to the Sixth and Fifth Class Chakola Camp to be under the direction of Mr. Simms and other Senior members of the Preparatory School Staff has been most encouraging and a waiting list has been established. Full details of Chakola Camp will be forthcoming to parents during the course of the coming weeks, and we are grateful to all those who have made this camp possible for a large number of our senior boys. Crusader Camps too have been encouragingly supported and we have no hesitation in recommending these to parents who wish their boys to share companionship of others from Independent Preparatory Schools during the holidays. The Crusader Camps while supported by the School are completely independent in their organisation and operation. In addition, a smaller group of boys will be spending part of the August Vacation on an educational camping tour, but this is completely an independent and private venture, and whilst undertaken with the School's knowledge is not under its direction or control. In fairness to all parents the above information has been printed to clarify a number of queries brought forward by parents with regard to vacation camps. We hope this will clarify the situation."
The Bulletin for the week commencing 23 April 1976 contained the following information concerning camps: "SIXTH CLASSES HUNTER VALLEY EXCURSIONS On Monday 3rd May to Wednesday 5th May, boys in Sixth Classes will be undertaking their Hunter Valley Excursion. As all arrangements have now been finalised for this educational excursion, it is necessary for parents who have not forwarded the balance of the payment required, to do so next Tuesday morning 27th April. It is essential that all moneys be in by this time so that financial obligations may be met prior to the commencement of the Excursion. Parents of all boys who are attending this Excursion will have received a full outline of the itinerary and clothing list. The final information sheet regarding the Excursion outlined in detail the features of the group's stay in various centres. Should this itinerary and information sheet not have been produced at home, please check with your son to see that he hands it to you. It has been given to him for personal delivery at home. Should there be any further queries, a telephone call during school hours to either Mr. Betteridge or Mr. Duffy will be welcome and should provide the necessary answers. We assure all parents that the proposed Hunter Valley Excursion will be of immense value to every boy both socially and educationally. CHAKOLA VACATION CAMP A reminder to those parents of boys who have applied to attend the Chakola Vacation Camp under the direction of Mr. Simms and other members of the Staff, that final payment of the balance of their fees are now due. Already a number of parents have fulfilled their obligations in this regard and those who have not yet done so, are asked to forward their cheques to Mr. Simms, made payable to the Trinity Grammar Preparatory School Camp Account. The deadline for the receipt of these payments will be Friday 30th April."
The Bulletin for the week commencing 11 November 1977 contains a reference to a Colo weekend camp. It is in the following terms: "COLO WEEKEND CAMP This coming weekend another group of senior boys will enjoy a camping experience at Colo under the direction of Mr. Neville Betteridge. The previous weekend camp held two weeks ago was an overwhelming success and those who will be accompanying Mr. Betteridge and other members of staff this Saturday, are assured of an equally enjoyable experience. Parents of those boys who will be attending the Colo Camp have already received full details, but are reminded the Preparatory School bus will be leaving the Llandillo Avenue gates at 12.30 p.m. on Saturday for the Colo Centre. Boys who are playing cricket will have adequate time to change and be brought to the school. Depending upon the volume of traffic on Sunday afternoon on the Windsor Road, it is hoped the party will return to the School at approximately 6 p.m. Any further inquiries should be made directly to Mr. Betteridge. We are grateful to all members of staff who have been so generous in the giving of their spare time on weekends to take groups of boys away on camping excursions. In many cases this is the first opportunity boys have had in participating in an outdoor programme and sleeping under canvass."
This seems to be the first reference in the documentary material adduced to a camp at Colo.
The December 1974 edition of the Trinity magazine "The Triangle" contained the Preparatory School speech day annual report by the Reverend Sandars. It stated that "although the Preparatory School is physically and geographically separated, we are an integral part of Trinity". The report also referred to Futcher instructing the lifesaving group.
The report makes reference to the "Cub Pack under the leadership of its Akela, Mrs Helen Clarke, ably assisted by Cub Leaders". It states that "Misses Deborah Sandars, Naralee Denham and Sally Burke have enjoyed a busy and beneficial year with a capacity membership". Some reliance is placed by the respondent on the failure of those retained by the applicant to interview Ms Deborah Sandars.
The report also referred to school camps and stated that "vacation camps organised by our own staff members have also offered enriching experiences to many boys in group living and sharing of responsibilities". It stated that "a large number of Sixth Class boys ventured far into the Murrumbidgee Irrigation Area for a seven day excursion in May". It stated that "[a]gain, the annual school camp held at Chakola attracted a full complement of boys in August" stating that "[e]ven Transition Classes participated in their first camp weekend".
The annual report for the Preparatory School dated December 1975 again made reference to the Cub Pack stating that Ms Sandars was then the Akela. It also stated without elaboration that "vacation camps and class excursions organised by members of our Preparatory School staff have provided invaluable opportunities for the intellectual, physical and social training of our boys".
The June 1976 edition of "The Triangle" contained no information relevant to camps. It referred to Futcher giving tuition in lifesaving and as a rugby coach to the Prep First XV.
The December 1976 edition stated that the year had "seen a greater association and social involvement of Staff with their pupils outside the classroom". It referred to class excursions and group camps being organised which made it "possible for teachers to mix with their pupils in a different context". It stated that sixth class travelled to Canberra, third class to Jenolan Caves and first class to Glen David. It thanked "the many members of Staff who generously gave of their 'free time' to organise and staff these camps and excursions". It stated that "Mr Simms' initiative and organisation enabled some hundred boys to enjoy two holiday adventure camps at Chakola in the Kangaroo Valley". It also referred to Futcher conducting the lifesaving group. The edition again referred to Deborah Sandars as the Akela of the Cub Pack.
"The Triangle" for December 1977 makes reference to the Colo River camps. It contains the following material: "Class Camps and Excursions During 1977, the invaluable opportunity has been given to many Prep boys to widen their educational experiences outside the school environs. To this end, all classes have participated in Educational Excursions ranging from one to three days. Senior boys have visited the Hunter Valley, A.C.T. and the South Western area of N.S.W. Junior classes have experienced the joys of group living and visits to country centres. The weekend camps for Fifth and Sixth Class boys at Colo combined with the May vacation camp at Chakola, have all been worthwhile experiences in the development of character, social awareness and community projects."
In addition, the Preparatory School magazine for 1977 included a document headed "Colo River weekends" which contained the following information: "During the year, groups of boys from Years 5 and 6 have enjoyed several weekends at Munjon Camps property on the Colo River, about 30 Km from Windsor. They have paddled (and sunk) canoes, swum in the Colo River, been abseiling, played wide games, developed huge appetites, shot at targets with air rifles, and tackled the commando obstacle course. They have come home dirty and tired but all agree that a Colo weekend is a relaxing and very different way to have an enjoyable break."
The material extracted also contained letters from Betteridge to the then Headmaster dated 13 February 1978 and 13 June 1978. The first letter enclosed a copy of what was described as "our latest Munjon newsletter" and "a copy of our calendar for 1979" and expressed the hope that Mr West might "find time to join us one weekend". The second letter enclosed "the last Munjon newsletter" and "a clipping from the last issue of the 'Windsor-Richmond Gazette' regarding the opening" of the Munjon camps.
Mr West responded on 19 June 1978 thanking Betteridge for the information and saying he also "received a very nice letter from Terry Simpkins". Mr West stated that he was "impressed" with what Betteridge did at Munjon and stated that he would "certainly try to visit the Camp later in the year".
The documents included a camping programme for Munjon camps for 1979. 46 camps were detailed which mainly included a series of weekend camps. Other camps included an "Easter Vacation Tour" on 11 to 17 April, an "Open House Camp" running 7 to 18 May, "Junior Leaders Course" on 4 to 11 January 1980 and "South Coast Beach Crawl" on 16 to 22 January 1980. The camps were described as "supervised holiday camps, tours, educational excursions, leadership training, canoeing, caving, rockclimbing, bushwalking, adventure camping". A Mr T P Simpkins was described as the Director of the camps.
There was also included in the material extracted a report on the Munjon camps for 1978. It referred to the grand opening by Mr West and to the fact that "Betteridge was appointed Tours Director as an added duty to his already busy time as Deputy Director". The material specified the respondent as a record holder in the 14 years age category. It gave "pen pictures" of persons involved in the operation of the camps including Betteridge who was described as "the Deputy Director for some years". The report states that Munjon's "camping operations in the Colo area" commenced from August 1966. It stated that Betteridge's "first Munjon camp was a small group to Timor Caves and Glenbawn Dam in the Christmas vacation of 1970". It made no reference to any connection he had with Trinity.

(f) Other information supplied by the investigator

The investigator noted that he had obtained student class lists for Years 5 and 6 from 1973 to 1977 and teacher lists from 1973 to 1974. He noted that the respondent's teacher in Year 5 was Norm Duffy and in Year 6 Brian Simms. He also noted the 1974 teacher lists showed Mr Duffy, Mr Thwaites and Mr Skinner as Year 5 teachers and Mr Simms, Futcher and Betteridge as Year 6 teachers.
The investigator identified the following members of the teaching staff in 1973 or 1974 as deceased: (i) Mr Norman Duffy (ii) Mr Norman Skinner (iii) Mr Angus Roberts (iv) Mr B Wignell (v) Mr Frank Duck
The investigator also noted that the Reverend Sandars, Mr West and Mr Arthur Holt who was Chairman of Trinity School Council in the 1970s had also died.
The investigator noted that no attempt was made to contact teachers in the infants school "due to the limited time available and having identified that the infants went on separate school camps to those the Primary classes attended".
The investigator noted that the Munjon newsletter identified a person involved as a Mr Jim Crowe from Burwood Travel Service. The investigator stated that it identified a travel agent in Burwood called "Escape Travel Burwood" which had no knowledge of a Mr Jim Crowe.
In his second report dated 3 October 2017, the investigator merely referred to additional statements which he had obtained to which I have referred.

(g) The balance of the evidence of Mr Thompson

In his affidavit Mr Thompson referred to the fact that he learnt from his associate, Patrick Riordan, on 11 May 2016 that Betteridge was arrested and remanded in custody. He was informed on 5 June 2017 that Betteridge was deceased.
Mr Thompson said from his review of the first investigator's report and the signed statements of Mr Tritter, Ms Harris and Ms Brown received subsequent to it, he "perceived some degree of separation between the upper and middle primary teachers and the lower primary/infants teachers", the latter not seeming to have much to do with upper primary where Futcher taught. He determined in those circumstances that "the upper primary teachers were the most relevant to pursue". Of those teachers, he ascertained that in addition to Betteridge, Messrs Duffy, Wignell and Skinner were deceased. Mr Thompson said he "formed the view that the teachers of the lower grades (particularly Infants) were unlikely to know relevant information such as about camps Futcher attended and Futcher's interactions" with the applicant. He based this on the fact that the respondent was in Year 5 in 1973 and Year 6 in 1974, Futcher was an upper primary teacher and on the statements concerning school camps from Ms Diamond, Ms Brown, Mr Connors and Ms Harris. In those circumstances, he did not instruct the investigator to continue searches for teachers from Kindergarten to Grade 2.
Mr Thompson also stated that he did not instruct the investigator to continue searches for teachers who joined the Preparatory School after the respondent left Trinity. He stated that was because he formed the view that any knowledge or observation that teachers may have had of Futcher, the Reverend Sandars or the management of the Preparatory School, would have post-dated the abuse and the circumstances which gave rise to it. However, he instructed the investigator to continue to seek to locate Messrs Pogson, Simms, Christie and Thwaites. As I have pointed out above, statements were ultimately obtained from Messrs Pogson, Simms and Christie but it was ascertained that Mr Thwaites was deceased.
In relation to classes from Kindergarten to Year 2, Mr Thompson specifically referred to the affidavit of Ms Christine Diamond, Ms Christine Brown and Ms Christine Ballard, particularly to Ms Diamond's reference to the Preparatory School being "under the total control of the Reverend Sandars", that the Reverend Sandars allocated female teachers to Pre-school to Grade 2 and that she did not go on school camps involving primary school boys. He also stated that he understood from the affidavit of Ms Christine Ballard that camps for infants were separate to camps for upper primary boys.
Mr Thompson stated that efforts to located Ms McEwan, a teacher of second class in 1977, were unsuccessful. He also noted that it was ascertained that Mr Gurr who taught fifth class in 1975 was suffering from dementia. He noted that Mr Ogg, a teacher in the "late 1970s" who, the investigator ascertained, spoke to Betteridge about camps in 1979, had died in 2017. Mr Thompson also said it was ascertained that a Mr Angus Roberts, a PE teacher from 1975, was believed to be deceased as was a Mr Wignell, a Year 4 teacher in 1973.
Mr Thompson said that because Messrs Wilson-Hogg and West were deceased he sought to identify former office staff of Trinity for the purpose of ascertaining the process followed for employing a new teacher and checking their credentials. He obtained from the school archivist the name of three office staff members, two of whom were deceased. The other, a Ms Jones, informed Mr Thompson's associate that she was not there in the 1970s but was there no later than the 1960s. She said teachers "just appeared".
Mr Thompson referred to the fact that the document on "Munjon Camps" letterhead being a "Camping Programme 1979" recorded the Director of Munjon camps as "T.P. Simpkins". He referred to a note of a telephone conversation between Mr Riordan and Betteridge which recorded "Colo - correct that "Munjon Youth Camps" ran Colo … Terry Simpkins ran the camps … Munjon was started by Terry Simpkins … [Mr Betteridge] was involved in Munjon before Trinity".
In those circumstances, Mr Thompson stated he formed the view that the Colo River camps attended by the respondent were "likely Munjon Camps". He concluded that Mr Simpkins was therefore "potentially an important witness" who could give evidence of matters including supervision and procedures at the Munjon camps and any connection between Munjon and Trinity. He stated that he ascertained from a newspaper article that in August 1997 Mr Simpkins was imprisoned for three years. He stated that the New South Wales Department of Justice informed him that the Department did not hold information regarding Mr Simpkins being held in a correctional facility. Subsequently, an electoral roll search produced an address for Mr Simpkins. Mr Thompson's associate, a Ms Armstrong, spoke to Mr Simpkins who informed her that he had suffered a stroke which had impacted his memory. Mr Thompson stated that on 30 April 2018, his firm wrote to Mr Simpkins with a number of questions but no response was received to the letter.
Mr Thompson referred in his affidavit to the inquiries he made concerning Futcher. He indicated that his associate, Ms Armstrong, attended Futcher's sentencing hearing where he was sentenced to a term of imprisonment of 18 years and 4 months to commence on 14 September 2016. He stated that he sought permission from the correctional authorities to interview Futcher but the request was declined.
Mr Thompson stated that he caused a search of Trinity's documents concerning Futcher to be undertaken to reveal whether there were any records of prior offending. He stated that there were no such records within Trinity's documents.
Mr Thompson referred to the fact that Trinity had been required to identify and/or produce documents relating to Futcher pursuant to a search warrant issued by the NSW Police, a summons to produce issued by the Chair of the Royal Commission into Institutional Responses to Child Sexual Abuse, two subpoenas to produce and a request by Police of other documents referred to in a statement of a Mr Peter Green which was exhibited to his affidavit.
Mr Thompson stated that no records had been brought to his attention reflecting complaints against Futcher, except the letter from Futcher dated 30 July 1977 relating to complaints about the rugby match (see [92] above), inquiries or complaints to police and solicitors in 1997, 2004 and 2014 in connection with abuse that is the subject of the current proceedings and materials in connection with the current claim.
So far as paragraph 5C of the Statement of Claim is concerned (the incident relating to Peter Green), Mr Thompson deposed that the records produced by Trinity concerning Peter Green contained no records of complaints made by his mother in relation to him being caned by Futcher. He stated that Trinity had no record of a daily diary kept by the Reverend Sandars.
Mr Thompson also stated in his affidavit that he made inquiries regarding Futcher's history before he arrived at Trinity. Those inquiries revealed that in 1969 Futcher was a teacher at a school then known as Croker Island School or Cropper Island School (currently known as Mamaruni School). The employer was the Northern Territory Government whose archives did not contain any information regarding Futcher.
Inquiries were also made of Sydney Grammar Preparatory School, St Ives, where Futcher worked from 1970 to 1973. The inquiries revealed that Futcher was appointed by Mr T G Jones, the Headmaster at the time who died on 15 September 1989. His successor, a Mr Maffey, stated that he was "certain that no abuse by Neil Futcher was ever reported to him". A copy of meeting minutes of the Trustees of Sydney Grammar School dated Wednesday 29 July 1970 stated that Futcher "should retain his appointment at St Ives". There was also a copy of part of a letter from Mr Jones concerning Futcher. It is difficult to read but to the extent that it is decipherable, it described Futcher as an "enthusiastic teacher" and offered to supply further detail on request.
In paragraph 75 of his affidavit Mr Thompson summarised the inquiries he made in the following terms: "a. obtaining all available documentary material from Trinity, including class and staff lists from the 1970s, staff files, newsletters and school magazines from the 1970s, correspondence and available School Handbooks; b. seeking and/or obtaining, by subpoena, records and statements from NSW Police, the Director of Public Prosecutions (subpoena issued by the plaintiff's solicitors), health providers and other Schools (including Knox and Sydney Grammar); c. instructing in early April 2016 Mr Fitzsimons to locate and interview as many former Preparatory School teaching staff as possible; d. receiving Mr Fitzsimons' report in June 2016 and instructing him to continue pursuit of individuals judged by me to potentially be in a position to provide relevant evidence, being all middle and upper primary teachers who had not yet been interviewed and were not deceased; e. causing for specific inquiry to be made of Mr Betteridge (before his arrest, remand and death) and causing for inquiries to be made of former administrative staff of Trinity; f. engaging with former Trinity staff who were able to be located and were willing to cooperate."

(h) The evidence of Mr Riordan

Mr Patrick Riordan, a principal in the firm of solicitors for the plaintiff, swore two affidavits. The first related to his contact with Betteridge.
Mr Riordan deposed that on 29 March 2016 he had a telephone conversation with Betteridge in respect of which he took a detailed note. During the course of the telephone conversation Betteridge stated that he knew that Norm Duffy died suddenly. He also stated that he was at Trinity from the beginning of 1973 to the end of 1985. He said that he and Futcher were reasonably close at work and since that time had crossed paths once or twice.
Betteridge said he applied for the role at the Preparatory School. He said Mr Wilson-Hogg was the Principal and the Reverend Sandars was head of the Preparatory School at the time he applied. He said he generally taught sixth class, sometimes fifth and that female teachers taught the lower years.
He stated that there were camps at Colo, Lake Macquarie and the Kangaroo Valley and one on the Georges River. He stated that he never went to the Kangaroo Valley camp, Chakola.
In relation to Colo, he said it was correct that 'Munjon Youth Camps' ran Colo and that he went there with the blessing of the school. He said Mr West did an official opening, there was a brass plaque on a rock and the camp was run by Terry Simpkins. He stated that Munjon was started by Terry Simpkins, who he said left Barker as a teacher to run Munjon full-time.
He stated that children and their families attended Munjon, many from Trinity because of him and many from Barker because of Mr Simpkins. He said he did not get up there very much.
Betteridge stated that he was involved in Munjon before Trinity. He had worked with Terry Simpkins at Barker which was when he began Munjon.
Betteridge said that there was a Trinity school bus and after sport he could drive a mob of boys up there for the weekend. He said that there was a grand opening in 1979 when Munjon got its own premises. He stated that most weekends there were camps, the door was open and a good group of core parents would come up with others. He said that they were mostly from Trinity and Barker.
He stated that "he knew Futcher went up there - but not too often". He stated that he did not recall Futcher "coming up often". Mr Riordan said that after that conversation he made arrangements with Mr Thompson to interview Betteridge in Queensland on 12 May 2016. However, he was contacted by a Legal Aid solicitor who stated that Betteridge had been arrested, subjected to an extradition warrant and remanded in custody, so he would not be able to be interviewed.
Mr Riordan stated that in 2017 he made inquiries with the NSW Department of Justice and was informed that Betteridge was deceased.
In his second affidavit, Mr Riordan exhibited two files from Trinity. The first was labelled "S/001/131 Head master's file - memoranda to Rev K Sandars Chaplain/Master of Prep 1961-1974" and the second "AC1994/224/001 Head Master's Correspondence - MIC Prep School 1964-1973".
Part of the first file relates to the period when the Reverend Sandars was the School Chaplain. It does not contain anything of direct relevance to the issues in the present proceedings.
The file, however, includes the invitation to the Reverend Sandars to "take up the position of Master-in-Charge of the Preparatory School and of its teaching branch" dated 22 April 1964, together with the Reverend Sandars' acceptance on the same date. The letters do not give any detailed outline of the Reverend Sandars' duties and responsibilities. Indeed, in the letter of offer to the Reverend Sandars, Mr Wilson-Hogg states that he would not elaborate on the duties of the Master-in-Charge because the Reverend Sandars was familiar with them already. Mr Wilson-Hogg expressed that his "main desire" was that the "Preparatory School should be … revitalized" as there had been "a heavy falling-off in numbers over the last few years".
A letter of 19 March 1968 from a firm of solicitors concerning the enrolment of a student at the Preparatory School was responded to by Mr Wilson-Hogg on 20 March 1968, stating that the Preparatory School was "separate from the Senior School" and most of the enrolments for junior boys were "dealt with directly by the Master-in-Charge, the Reverend Keith Sandars". There was a note from Mr Wilson-Hogg to the Reverend Sandars requesting that he deal with the matter.
In a letter of 1 July 1968 from Mr Wilson-Hogg to the Reverend Sandars concerning Crusader Camps, Mr Wilson-Hogg stated he would be grateful if a Mr Kidd (a person associated with Crusader Camps) "could address your boys as soon as possible so that those who wished to attend a camp in September may be able to do so".
One matter of controversy as revealed by the letters was the question of whether Old Boys should be permitted to be married at the School Chapel and who should conduct the ceremonies. There was evidently some disagreement between the Reverend Sandars and the then School Chaplain concerning this issue. It is unnecessary to go through the material in detail but I mention it because some reliance was placed on this correspondence by the respondent in his submissions on the appeal.
In a letter of 22 June 1972 from Mr Wilson-Hogg to the Reverend Sandars, the Reverend Sandars was informed that the Executive Committee of the school was prepared to grant the Reverend Sandars leave from Easter until the resumption of the third term. Mr Wilson-Hogg discussed the possibility of Mr Duffy being Acting Master of the school in the absence of the Reverend Sandars and the idea was accepted in principle.
The material contains a reference from Mr Wilson-Hogg for Deborah Sandars in support of her application for a place in the Waverley Kindergarten Training College. Mr Wilson-Hogg said he had "known Miss Sandars all her life". This would seem to show fairly clearly that Miss Sandars was the Reverend Sandars' daughter.
A note from Mr Wilson-Hogg to the Reverend Sandars of 23 November 1972 suggested that the Reverend Sandars make contact with the librarian as a matter of urgency to discuss how best for both schools (the senior and junior) the librarian's time could be used.
A letter of 1 June 1973 from Mr Wilson-Hogg to the Reverend Sandars rejected the Reverend Sandars' proposal that the testing of fourth and sixth class should take place in the third term of the year and requesting that it be carried out in the first term so that the teachers had the benefit of the results for as great a part of the year as possible.
The file disclosed two letters in which Mr Wilson-Hogg wrote directly to members of primary school staff. One of them wished a staff member (Mr Stevenson) well in the future and enclosed a reference. The other was to express thanks to a school secretary for bearing the heavy burden of secretaryship at the Preparatory School. The material also contained a request to the Reverend Sandars from Mr Wilson-Hogg that a potential student be placed at the head of the waiting list of boarders.
Part of the second file also relates to the period that the Reverend Sandars was the School Chaplain. However, a letter of 26 September 1968 emphasised that "the proper title" of the Preparatory School was "Trinity Grammar Preparatory School" not "Trinity Preparatory School" and requested Reverend Sandars use "the proper title" on all occasions.
The file also contained material about who could be married at the school chapel and by whom. This dispute was escalated to the attention of Archbishop Hulme-Moir who at that time was the Chairman of the Council of Trinity.
On 9 March 1971, Mr Wilson-Hogg communicated with the Reverend Sandars concerning a boy who had been enrolled in the school "on the understanding that no fees would be charged". The letter requested that the Reverend Sandars let the Headmaster know what he thought of the boy and his parents and stated that provided the Reverend Sandars was "satisfied on those points", he (Mr Wilson-Hogg) believed that the school council would not hesitate to make the gesture of taking the young boy for no fees.
On 10 August 1973, Mr Wilson-Hogg sent a memorandum to the Reverend Sandars who appeared to be on leave at the time concerning the appointment "of a third girl in the Kindergarten proper". It stated that "under the terms which govern our Kindergarten we must have two fully qualified teachers and what is called a teacher's aide or three fully qualified teachers. Quite frankly, I think that at the present rate of salaries, three fully qualified girls to teach 39 Kindergarteners is a very costly business and I believe we should look around for a teacher's aide".
On 16 August 1973, Mr Wilson-Hogg wrote to the Reverend Sandars stating that he was "very sorry" to greet his return to the school with "a troublous matter, but the fact is that a very unhappy situation has developed in the Sub-Primary School" arising from the resignation of three teachers. The letter stated that "Mr Duffy handled the situation very well" but requested that the Reverend Sandars give "moral support" and "encouragement" to the remaining female Kindergarten teacher.
I have set this material out because reliance was placed on it by the respondent. However, the correspondence does not suggest that Mr Wilson-Hogg interfered to any extent in the operational aspects of the Preparatory School, much less the organisation and control of camps.

(i) Mr Campbell Geoffrey Dungan

Mr Dungan is currently the Bursar at Trinity commencing his employment at the school in 1988 as the school accountant and being appointed Bursar in 1993. He swore an affidavit on 29 June 2018.
Mr Dungan stated that the school was currently without insurance coverage in respect of the respondent's claim. He stated that his inquiries and searches had failed to identify the school's public liability insurer at the time of the alleged abuse.
Mr Dungan stated that he had "tried to locate and identify an insurer from the relevant period but without success". His inquiries included searching the school's financial records from the 1970s for any insurance policies, correspondence or invoices, causing his assistant and the school archivist to perform a search of the school's records from the 1970s, causing the school's insurance broker Aon to search its records given its role as insurance broker to the school since at least 1990 and searching school council minutes from the 1970s for any reference to an insurance company.
Correspondence exhibited to Mr Dungan's affidavit includes a proposal by a firm of insurance brokers, Cartwright Insurances Pty Ltd, to be appointed as brokers and a resolution by the school council in 1974 to appoint that company. The report to the Executive Committee of 15 October 1974 stated that all risks, public risks and other insurances "appeared adequate".
Minutes of the meeting of the Executive Committee of Trinity of 29 April 1976 annexed to Mr Dungan's affidavit, recorded an intention to consult with Bates Insurance Group for "a further opinion" on a recommendation to increase insurance values on buildings. At a meeting of the 15 June 1976, it was determined that HM Bates Insurance Pty Ltd be appointed as the school's insurance broker and public liability insurance be increased to $1 million.
The minutes of the Executive Committee of 20 June 1978 noted an increase in public liability insurance to $2 million and minutes of 19 February 1980 recorded an increase to $5 million.
Mr Dungan's affidavit contained a letter of 27 September 2017 recording that inquiries made of a Ms Susan Cartwright and a Ms Sandra Bates revealed no information as to insurance and that HM Bates Australia Pty Ltd, identified as HM Bates Insurances Pty Ltd, was in fact deregistered.
Mr Dungan stated that as Bursar for the school and where the school is without insurance coverage, he has personally overseen the response to the present Court proceedings and is the person who retains custody over all documents pertaining to the applicant's complaints.
Mr Dungan stated that in his time as Bursar, where the school has responded to allegations of inappropriate behaviour, he has overseen a search of the school's records including in the case of complaints, "a check of the individual files of the persons named in the complaints". He stated that "the information found has been copied and kept in a separate file" irrespective of "whether or not production of records has actually been requested".
He stated that was the practice that he followed in relation to the applicant's claim and that the Secretary to the Headmaster and the school's Governance and Compliance Manager had also "directed searches in relation to Futcher and/or insurance records".
Mr Dungan also gave evidence concerning assistance to the police in 1997. He stated that the school archivist was asked to search the school's electronic and physical historical records for the records requested and that documents were sent to NSW Police by letter dated 17 June 1997. He stated that neither he nor anybody else that he was aware of at the school "took steps in 1997, 2004 or 2014 to contact former staff members to enquire whether they had any knowledge of the subject matter" of the complaints. He said that because of the then Headmaster Mr Cujes' contact with the police from 1997, he "believed from that point onwards that the complaints were being investigated, or had been investigated, by the Police".

D The primary judgment

The primary judge referred to the provisions of s 6A of the Limitation Act which I have set out above. He stated that the amendment was "necessary" given the experience of the Court that victims of sexual abuse "may take many years, if not decades, before they are able to deal objectively with the conduct of the perpetrator and the damage it has caused". However, he recognised that "the amending legislation clarifies that the powers reposed in the Court to dismiss certain proceedings summarily on the basis that those proceedings are an abuse of process or cannot be fairly prosecuted, because of delay, continues to operate". He stated that the legislature had "saved the general power of the Court … to stay those proceedings permanently, where the lapse of time has meant that a fair trial of fact is not possible".
The primary judge noted that four of the assaults by Futcher were admitted on the pleadings by Trinity. He stated correctly that the issue in the proceedings between the plaintiff and Trinity depended "more on the operation of vicarious liability and any non-delegable duty of Trinity, than on the happening of the occurrences or the assessment of damage[s]". The primary judge noted at [22] that an issue between the parties in the proceedings was whether "Mr Futcher's conduct was in the course of his ordinary duties and whether there was a negligent omission by the staff at Trinity, or Trinity itself, in placing Mr Futcher in a position in which those acts could occur". He stated that the issue depended on "the circumstances relating to the employment of Mr Futcher and circumstances relating to the conduct of the activities that were occurring when the plaintiff was assaulted".
The primary judge suggested that the issues relating to the so-called non-delegable duty and vicarious liability are "so similar that, for present purposes, they need not be treated separately".
The primary judge stated at [25] that "as the law currently stands …liability is determined by consideration of any special role or authority that Trinity had assigned to Mr Futcher and the position in which Futcher was, as a consequence, placed, in relation to the abuse of the plaintiff". Referring to Prince Alfred College, he stated at [27] that "it cannot be said that the evidence available and the allegations made render the plaintiff's claim weak". He said that "[e]ven if the witnesses, the absence of whom are subject of complaint, were available, such witnesses would be faced with cross-examination based upon the reference to those occasions as 'our camps' and other such documents or references". He also stated that there was "undeniable evidence of Trinity placing Mr Futcher in a position of trust with students, beyond classroom teaching" such as a sports coach and swimming or lifesaving coach. As will be seen, the difficulty with this approach is that the reference to "our camps" in the various documents did not include a reference to the Munjon camp at Colo River.
The primary judge noted the submission by the plaintiff that the liability of Trinity is broader than that suggested in Prince Alfred College. He referred in this regard to Armes v Nottinghamshire County Council [2017] UKSC 60 and S v Attorney General [2003] 3 NZLR 450; [2003] NZCA 149. He recognised, however, that the Court is bound by the reasons of the judgment in Prince Alfred College but stated at [30] that the plaintiff "is entitled to seek to persuade the Court that a broader approach is available, even if that submission be put only formally at first instance". However, he stated at [31] that "[w]hether or not the principles of vicarious liability are in the process of being extended, the claims by the plaintiff are plainly not unarguable and are, on the evidence that is available, … relatively strong".
The primary judge stated that the issue is whether "on the facts that have been presented to the Court, the Court must determine whether a fair trial is possible". He stated at [36] that "two fundamental issues need to be noted". He stated that "[f]irst, the trial is a trial by judge alone and not by jury". He stated that second, "it is the plaintiff who must establish that the alleged assaults occurred" and that Trinity bore responsibility for the assaults.
The primary judge noted correctly at [38] that the alleged shortfall in the evidence goes to whether Trinity was responsible for the attendance of Mr Futcher and/or the plaintiff at the locations where the assaults occurred or bears responsibility for misconduct that occurred at those locations. He stated at [39] that "the responsibility of Trinity will depend upon whether camps, at which Mr Futcher was a teacher/organiser and the plaintiff was a participant, were endorsed by Trinity, which encouraged the teacher and/or student to attend". The primary judge noted that Trinity relied essentially on the reasons for judgment of this Court in Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20 ('Batistatos') and Connellan v Murphy [2017] VSCA 116. The primary judge noted that the High Court made it clear, on appeal from Batistatos, in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 that "every Court has within its power the right to take action to ensure that its process is not abused by the hearing of a proceeding that is without reasonable grounds or is vexatious and harassing or is an abuse of process". He stated that such a power did not depend upon the plaintiff "seeking an indulgence from the court or being otherwise outside the limitation period".
The primary judge stated at [63] that the evidence before the Court established that the Reverend Sandars "ran the Prep School in an authoritarian manner and was very much in control of the Prep School". He also noted that because of the structure of the school, or because of their physical locations, the Preparatory School was "run very much as a separate entity from the Senior School". He stated that "[n]evertheless, Messrs Wilson-Hogg and West were Principals or Heads of the entire School, not just the Secondary School".
The primary judge noted that Trinity's investigations had "concentrated on upper-primary teachers, because of the perceived separation between the upper and middle-primary teachers and the lower-primary/infants teachers". He stated that the investigation seemed to have focused on the conduct of Futcher and his attendance at particular camps and interactions with the plaintiff. He stated at [65] that there did "not seem to be good reason why all teachers would not be aware of the degree to which certain camps were facilitated by Trinity or whether students at the Prep School were encouraged to attend such camps". He stated that he "include[d] in the foregoing teachers in the earlier or junior years of the Senior School".
The primary judge also noted at [66] that the instruction given to the investigator was to cease any searches for teachers who had joined the Preparatory School after the plaintiff left Trinity. He stated that this was on account of Mr Thompson's view that such teachers would not have observed the relationship between Futcher and the Reverend Sandars or the management of the Preparatory School at the time of the abuse. He stated at [66] that "[n]evertheless, to the extent that the organisation and facilitation of the camps was a continuing undertaking, … it seems that teachers before and after the plaintiff left Trinity may have been able to give relevant evidence, but were not interviewed or identified".
The primary judge noted that it was clear from the magazine, "The Triangle", that the Reverend Sandars' daughter was involved in a Scouts and Cub Pack group organised by the school for its students. He stated that it seemed that no attempt had been made to interview the Reverend Sandars' daughter, Deborah.
He also referred at [68] to references in the Preparatory School magazine to "class excursions having been developed and expanded at all grade levels, including vacation camps 'organised by [Trinity's] own staff members'". He referred to the information that described "a large number of Sixth Class boys [who] ventured into the Murrumbidgee Irrigation Area for a seven day excursion in May" and a reference to Chakola in the Kangaroo Valley, and in the December 1974 magazine, a reference to the appointment of Futcher, his interests in lifesaving and its introduction as an activity.
The primary judge also referred at [70] to the fact that in a December 1975 edition, there was again reference to the "Cub Pack" and vacation camps and class excursions "organised by members of the Prep School staff". He noted that it described three categories of participants being pupils, staff and parents and stated that "at this stage" the evidence showed that "the enquiries by Trinity … seemed to have focused only on staff (and in that regard a limited class of teachers)".
The primary judge noted that in the December 1977 edition of "The Triangle" there was reference to class camps and excursions for fifth and sixth class boys at Colo and Chakola, each of which were relevant to allegations before the Court. There was also a reference to "Cub Packs".
The primary judge stated that the statements of teachers that were interviewed were instructive. He referred in particular to the statements of Mr Connors, Mr Southwood, Ms Diamond, Ms Ballard and Mr Simms regarding their reference to camps and in particular in the case of Ms Ballard's reference to a "camp account" in which parents were charged and the charge placed on their school bill.
The primary judge stated at [81] that the issue was not whether there was evidence of the camps and the degree to which the school and its staff facilitated and organised them, rather the issue was "the extent to which evidence does not exist that might otherwise have existed and/or the extent to which Trinity is prejudiced, because detailed evidence of particular camps, their organisation and encouragement by the School, is or may be unavailable". He stated however, that there was "no requirement that the trial be perfect".
The primary judge stated at [82] that the "formal structure" of the school was "not absolutely clear". He referred to a letter of 9 September 2004 on the letterhead of the Anglican Church Diocese of Sydney to the Headmaster that Trinity was "under the control of the Synod", noting that that matter was not the subject of submissions by the parties, nor was the Court in possession of any evidence of the nature of that "control".
The primary judge also referred at [83] to the conversation between the Reverend Sandars and the respondent's mother which I have referred to at [75] above. He stated that to the extent that the plaintiff was allowed to adduce evidence of that conversation, Trinity maintained that "its inability to obtain a version of the conversation from Rev[erend] Sandars or otherwise to investigate the accuracy of that comment; or its truthfulness; or if it applied to a period during which Mr Futcher was a teacher at Trinity, is highly prejudicial".
The primary judge concluded at [86] that ultimately "the structure of Trinity" had "not been adequately explained" by it. He said that there was "little evidence of the formal structure of Trinity" beyond the relationship between Reverend Sandars and the Headmaster of the College as a whole. He said that "[t]he role of any Council of the College or Board of Management" was "unexplained". He stated that "[t]he documents before any Board of Management or the absence of them is unexplained". He stated that there had been "no search or enquiry for Board or Council papers or Reports of past Board or Council members".
The primary judge stated at [87] that there had been "no attempt by Trinity to investigate the circumstances, in which the camps were held, with members of the Archdiocesan Council, members of the School Council/Board or teachers in the Senior School". He stated that there had been "no attempt to investigate the role that Trinity Preparatory School played in the facilitation of the camps and the encouragement of attendance from parents of students who attended during that period".
The primary judge at [89] referred to the Headmaster's files which are exhibits to the affidavit of Mr Riordan (see [275] above). He noted that there was "no relevant file relating to Mr West or the period later in time, except times that are wholly irrelevant to the proceedings before the Court". He noted that in those circumstances, Trinity submitted that documents did "not exist for the period up to 1974 until some time after Mr Futcher and the plaintiff had left Trinity".
The primary judge stated at [92] that Trinity had "adduced no evidence to show an attempt by it to contact the Police or the Crown in relation to the 'missing' material". He said that if there was "a file or files for the period in question, it is most likely that Police would have obtained it or them". He stated that Trinity were on notice as to the claim by the respondent from information provided by the respondent, NSW Police and the Archdiocesan Council no later than 2004. He stated that the Reverend Sandars did not pass away until May 2012.
The primary judge stated that there was no evidence adduced that the defendant did not interview the Reverend Sandars between 1997 and 2012, that the police did not interview the Reverend Sanders between 1997 and 2012, and that there was no evidence that the defendant had been denied a version of events by the Reverend Sandars or sought to obtain from the prosecuting authorities the files that might otherwise exist.
The primary judge repeated at [96] that there was no evidence from Trinity that it had sought material from the Council/Board of the School; from the Archdiocesan Council; or from parents of children at the school who attended or were asked to attend the camps.
The primary judge noted at [97] that there was evidence from Betteridge on the organisation of camps, but stated that understandably Trinity did not seek to rely only on Betteridge given his conviction for similar offences. The primary judge did not refer to the fact that Betteridge had died.
The primary judge also noted at [99] that the affidavits disclosed that the defendant was insured but that the insurer was unable to be identified. He acknowledged that was "a further factor in relation to the prejudice suffered by Trinity" but stated that it was "not suggested that Trinity would be unable to meet any damages assessed or would find it difficult to meet any damages assessed". He also stated that the lack of material as to the identity of the insurer meant that even if insurance existed, it may not have covered the damages.
The primary judge stated at [103] that the defendant had taken no steps to seek from the Director of Public Prosecutions or the police, its material relating to the Reverend Sandars or to the camps and their conduct which had been the subject of production and/or the execution of a search warrant. He stated at [104] that there was evidence that on 1 February 2017, all police exhibits were returned to the owners. He stated that the "distribution by police" occurred because Trinity waited from the time it first became aware of the proceedings until after that date to request any documents.
The primary judge stated that none of the affidavits sworn attached the whole of the police brief and no one had testified that no statement from the Reverend Sandars existed, either in the police material, or at the Archdiocesan Council. He stated that the proposition which formed part of the alleged prejudice suffered by Trinity that no instructions could be obtained and no statement was available from the Reverend Sandars, Mr Wilson-Hogg and Mr West, had "not been shown to be so". In that context, he referred to the statement of Mr West concerning the camps to which I have referred at [84] above.
The primary judge stated that there was "significant evidence" concerning Mr "Futcher's heavy-handed approach to corporal punishment".
The primary judge stated at [112] that at no point did Mr Thompson suggest that there did not exist a statement made by the Reverend Sandars, either for the purpose of the Archdiocesan Council or the police and that there was no evidence of any record or request to either body for such a statement.
The primary judge after referring to the affidavit of Mr Dungan and his expectation that police would pursue lines of inquiry after a complaint was made stated at [114] that it would be "most surprising if, at the time that these issues were first raised, legal advice was not sought and a statement not taken from Rev[erend] Sandars". He repeated that none of the affidavit material suggested that such a statement is not in existence. He stated at [115] that "[t]he failure to adduce evidence other than the extract from Mr West … that no statement from Rev[erend] Sandars or Messrs West or Wilson-Hogg otherwise exists as to the operation of the camps; the circumstance of the employment of Mr Futcher and the knowledge of these assaults; or the circumstances in which Futcher was placed in a position of control; allows the Court to draw the inference that such evidence does not assist the defendant in its application".
The primary judge stated that the material that was before the Court pointed "irresistibly" to the proposition that the Munjon camps were attended by students at Barker College as well as those at Trinity. He noted that the Munjon facilities were opened by Mr West.
The primary judge stated that "no attempt had been made to obtain material from Barker" in relation to the organisation of the camps and the roles that Anglican schools played in their facilitation. He stated that "it may well be that "given the known participation of students from both Barker and Trinity, the camps were organised by the Archdiocesan Council". With respect, the evidence to which I have referred at [255] above makes it clear this is not the case.
The primary judge stated at [119] that records which cannot be found currently, but for which no search had been made of the police or the Archdiocesan Council, "would enable or could enable Trinity to deal with the manner in which Mr Futcher's background was scrutinised and the steps taken to recruit him as a teacher and check his references". He also stated that "the missing documents may deal in greater depth with the caning incident alleged in 5C of the Amended Statement of Claim".
The primary judge stated at [124] that "[m]any cases are decided on incomplete facts and, even without any substantial lapse of time, key witnesses can die suddenly or become unavailable". He noted that the respondent and his parents were available and could give evidence and that the parents could be cross-examined as to the documents with which they were provided that persuaded them to send their son to the camps in question and the circumstances that gave rise to the level of trust that was reposed in Futcher and whether the conduct of Trinity played any part in that circumstance. He stated that Futcher was alive and available for examination and/or cross-examination and in the case of Trinity, possibly cross-examination pursuant to the provisions of s 38 of Evidence Act 1995 (NSW). He stated that on the question of the liability of Trinity, the legal interests of Trinity and Futcher were identical.
The primary judge stated at [131] that "[m]ost importantly, notwithstanding the carefully structured Affidavits before the Court", they did not assert that no statement as to the relevant circumstances by the Reverend Sandars, or by either Mr West or Mr Wilson-Hogg exists. He stated that "a more complete investigation" might reveal that there was no statement by either the Reverend Sanders or either Messrs West and Wilson-Hogg, that the Archdiocesan Council or Board of Trinity did not have any documents relevant to the issues about which Trinity says they are prejudiced and that the police may not be in possession of any further documents. He stated however at [132] that if that were the case and Trinity was on notice of the sexual abuse and the improbability of some claim or the possibility of liability well before the death of the Reverend Sandars, Trinity in effect would be relying on its "turning of a blind eye" and in its failure to take steps at an appropriate time. He stated that "[g]iven that Trinity has not proved that statements and documents do not exist, the last-mentioned aspect need not be considered at this juncture".
The primary judge finally stated at [133] that the Court "must deal with the evidence that Trinity has sought to adduce". He stated that whilst it was "accurate that such material (i.e. as to the conduct or circumstances of the activities during which these assaults were said to have occurred) is not included in the evidence adduced, there is, nevertheless, no evidence that such material does not exist".
In those circumstances, the primary judge dismissed the application.

E The grounds of appeal

In the event that leave to appeal was granted, Trinity sought to rely on grounds of appeal contained in a document entitled "Proposed Further Amended Draft Notice of Appeal". The grounds are extensive and detailed and in the circumstances rather than setting them out or seeking to summarise them, I have attached them as a schedule to this judgment. In dealing with the submissions, I will refer to the relevant ground to which they are directed.

(a) Trinity's submissions

Senior counsel for Trinity referred to the fact that the respondent was in Year 6 in the Preparatory School in 1974 which was the year Futcher started as a teacher and he submitted the only year Futcher and the plaintiff were on the same campus. He submitted that was important because if the assaults in the camps and in the car occurred "they could only have occurred in 1974 with one exception" which might have occurred in 1973. He submitted that Futcher had "no association with the senior school" and such evidence as there was, including that of the respondent, was that the camps referred to in the Statement of Claim were camps which took place whilst the respondent was in the Preparatory School.
He submitted that apart from the reference to a date range of 1974 to 1976, there was no suggestion that the assaults took place at those camps whilst the respondent was in senior school. He noted the respondent's statement to the police of 19 May 2015 to the effect that he was in Years 5 and 6 from 1974 to 1975 (see [51] above) was incorrect as class lists showed he was in Year 6 in 1974.
Senior counsel for Trinity also referred to the statement made by the respondent in these proceedings. The respondent stated he was in Year 5 in 1973. He referred to that part of the respondent's statement to which I have referred at [59]-[60] above, noting that Futcher was not employed at the Preparatory School in 1973.
Senior counsel for Trinity referred to the respondent's statement that he attended camps at Chakola and the Colo River (see [66] above). He submitted that in that statement, the respondent went on to deal with matters that happened in Year 7 but made no reference to camps.
Senior counsel for Trinity referred to paragraph 12 of the Statement of Claim which I have set out at [33] above, in particular to paragraph 12(t). He stated that it was accepted that the Chakola camp referred to in paragraph 12(t) was "clearly associated with the school". He stated that there was no difficulty dealing with that allegation because the evidence was that Futcher never attended the Chakola camp.
Senior counsel for Trinity pointed out that Futcher was never the plaintiff's teacher and that in 1975 the respondent moved to a different campus.
Senior counsel pointed out that the position of the Reverend Sandars was "referred to throughout the pleadings as material", stating that it was "quite clear from the evidence that Reverend Sandars ran the school as … a one-man band".
Senior counsel for Trinity also referred to the fact that the Preparatory School itself was divided internally and up to Year 2 was treated as a separate part of the school taught by women. He submitted that the evidence of those teachers made it clear that "they were basically treated as a different section of the school". He referred to the fact that Mr Wilson-Hogg was dead and that Mr West who was also dead said he knew nothing of Futcher's behaviour, was not sure that he even met Futcher and the extent of his knowledge was that he had heard that there were some camps.
Senior counsel for Trinity referred to the incident concerning Peter Green to which I have referred at [30] above and the statement by Ms Anderson concerning the Reverend Sandars' response when she asked him in 2007 whether he was aware that "Futcher was attacking boys at the school" (see [75] above). He stated that the Reverend Sandars' answer was "ambiguous" but it highlighted his centrality to the proceedings.
Senior counsel for Trinity submitted that the acts of abuse could be divided into four categories. The first was whilst Futcher was transporting the respondent to school sportsgrounds in Futcher's car. The second was assaults on multiple occasions at Futcher's unit at Drummoyne. The third was whilst transporting the respondent to various locations in Futcher's car or van and the fourth was abuse at camps at Macquarie Fields, Colo River and Camp Chakola. He submitted that the second and third category could not satisfy the test for vicarious liability in Prince Alfred College.
Senior counsel for Trinity referring to what was said in Prince Alfred College, stated that what was involved was "a heavily fact based inquiry". He submitted that included detailed consideration of Futcher's role at the camps (excluding Chakola), Trinity's involvement in the presence of the respondent and/or Futcher's position at the camps, and details of the camps. He referred to paragraph 12(t) of the Statement of Claim submitting that whether or not it referred to all camps, it was "quite clear" that the Reverend Sandars stood "at the heart of the potential liability" of Trinity. He submitted that the particulars in support of what he described as the first class of allegations concerning transportation to sports events raises questions of the "policies and practices of the school with respect to transportation of pupils" which depended on the evidence of the Reverend Sandars who ran the school in "an almost authoritarian fashion".
Senior counsel stated that the assaults which he submitted were unlikely candidates for vicarious liability would be candidates for liability in the event of a breach of a non-delegable duty. Referring to paragraph 12(a) of the Statement of Claim (see [33] above), he submitted liability did not extend to intentional criminal conduct against a pupil by an employee teacher. He submitted paragraph 12(c) related to the employment of Futcher whilst the other particulars related to the Preparatory School's systems or instructions for staff and students. He accepted that evidence could be obtained from staff but submitted that "no proper attempt" to deal with the matter could be made due to the effluxion of time.
Senior counsel for Trinity sought to summarise the prejudice. He pointed out that "sexual assaults almost invariably are secret affairs", often depending on circumstantial evidence to challenge the allegation. He submitted that when one goes through the evidence and sees the number of people who have died and the degree of weakness of recollections of witnesses who could be found, the "capacity to put the allegations to any effective test has evaporated".
Senior counsel for Trinity accepted that the Reverend Sandars died after the abuse was reported but submitted that the evidence was that after seeking legal advice, Trinity determined it "would assist the police" but "otherwise left it to the police to conduct that investigation". He noted that at the time the case was statute-barred and the legal advice received by Trinity was that "there was no prospect of any liability". He referred in that context to the evidence of Mr Dungan stating that it was unchallenged in the Court below that the decision "not to get into a situation" where Trinity "was cutting across a police investigation" was made for this reason.
Senior counsel for Trinity referred to the criticism by the primary judge of the failure to seek out former parents and teachers who taught after the respondent left the campus (see [326] above). He stated there were 450 students on the campus of the Preparatory School at the time and that no regard was paid by the primary judge to the fact that the teachers who were investigated continued working at Trinity after the respondent left the school. So far as senior school teachers were concerned, he said that the evidence was clear they had no involvement with the Preparatory School. Senior counsel referred to the criticism by the primary judge of the failure to contact the Archdiocese and the Council. He stated that there was "no evidence" that either the Archdiocese or the Council "would be likely to have anything to do with these sorts of level of detail".
Senior counsel for Trinity submitted that the case raised the same issues as those involved in Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 ('Moubarak'). He submitted that his client's capacity to meaningfully participate in the proceedings in reality lay with the Reverend Sandars who was dead. He submitted that the most important adverse inference the primary judge drew against Trinity was that there may well exist an undisclosed statement of the Reverend Sandars (see [330], [332] and [338] above).
Senior counsel for Trinity submitted that there was no basis for the conclusion of the primary judge that all relevant material had not been subpoenaed. He submitted that the annexure of subpoenas attached to his submissions would have produced any statement by the Reverend Sandars which existed and if there had been one, it would at least have to be disclosed even if privilege was claimed. He submitted that this matter was not raised at the hearing and if it had been it would have led to the tendering of all the subpoenas which had in fact been issued. He noted that without objection, an annexure of the subpoenas was attached to his written submissions. He referred to paragraph 75 of the affidavit of Mr Thompson to which I have referred at [264] above and submitted that if the suggestion made by the primary judge was correct that evidence effectively would be false.
Senior counsel for Trinity referred to the correspondence regarding the circumstances of Futcher's resignation (see [92]-[93] above). He submitted that the uncertainty for the reason for him leaving the school demonstrated the prejudice. He submitted that there were "large gaps" in the evidence, referring to the second affidavit of Mr Riordan.
Senior counsel for Trinity referred to the fact that Betteridge was dead. He also referred to the primary judge's comment that Futcher was available to give evidence which he described as one of the four pillars of the primary judge's reasons. He submitted that Futcher was not a person on whom any reasonable person would place trust and, in any event, permission to interview him was refused.
Senior counsel for Trinity referred to Mr Thompson's conclusion that he did not consider it was necessary to pursue lower infant teachers or teachers who only joined the school after the respondent left Trinity. He submitted that it would be "impossible" for teachers who arrived after the respondent left to "give evidence about Mr Futcher's employment and his role in or the nature of any specific camps … and in any way compensate or make up for the absence of the Reverend Sandars".
Senior counsel for Trinity referred to the criticism by the primary judge that those responsible for investigating the claims "did not speak to each member of the school council". He submitted that there was no evidence that any of the members of the council at the relevant time were alive. He submitted that one could keep on making investigations which of itself demonstrated the oppression. He made the same submission in answer to the suggestion that the school should pursue the parents of the 450 students. He submitted that if Trinity was required to go on and consider even remote possibilities, that was "apt to bring the state of the law into disrepute because of the intolerable burdens" which resulted from such requirements.
Senior counsel for Trinity submitted that it was not a matter for the Court to speculate how the respondent might conduct his case and whether Trinity might have sufficient evidence to meet it. He submitted that Trinity had to satisfy the Court on the basis of the evidence before it that the conduct of litigation in these circumstances was an abuse of process. He submitted that even if further inquiries could be made there was no evidence that such inquiries would overcome "the fundamental problem … that everything was concentrated in the Reverend Sandars". He submitted that the question was whether rationality demanded that something further had to be done.
Senior counsel for Trinity stated that the evidence of Christine Diamond, John Christie, Bruce Simms, Michael Perini and Garry Connors supported the proposition that "everything was concentrated in the Reverend Sandars". He noted that the primary judge criticised Trinity for not seeking out teachers who were teachers in other parts of the school at the time (see [311] above). He submitted that the primary judge overlooked the fact that the senior school was on a different campus and "run in effect as a separate school". He also submitted that the primary judge's criticism that Trinity did not seek to locate all the teachers from Transition to Grade 2 was not justified. He referred to the evidence of Ms Diamond which he submitted "made it perfectly clear that they were, in effect, a world apart". He said that Mr Thompson's reasons for not doing so (see [250]-[252] above) were not challenged in cross-examination.
In relation to the criticism that teachers who joined the school after Futcher left and parents of pupils who attended Trinity at the time had not been sought out, senior counsel for Trinity again submitted that having regard to the fact there were 450 students in the preparatory school an inquiry would have involved in excess of 1,000 people. He submitted that the suggestion by the primary judge that Barker College ought to have been approached because students from that school attended the Munjon camps was unjustified, stating that it was "wholly unclear" what inquiries should have been made and what evidence was likely to emerge from those inquiries.
Senior counsel submitted that it was clear that the Munjon (Colo River) camps were not "set up by Trinity". He submitted that the comment by the primary judge, "[i]t may well be, for example, that given the known participation of students from both Barker and Trinity, the camps were organised by the Archdiocesan Council" was unsupported by the evidence.
Senior counsel for Trinity accepted teachers were participating in the camp and it was possible that the school had some involvement such as recommending or authorising that students attend the camps but he submitted that "the degree of such involvement and how it took place" lay "at the very heart" of the question of vicarious liability. He submitted that in circumstances where Trinity was unable to deal with this issue, an inference adverse to Trinity might be drawn from the participation of students which Trinity would have no opportunity to rebut.
In dealing with camps, reference was made to Trinity's written submissions which summarised the evidence concerning the camps which I have set out above. It was submitted that Trinity was not prejudiced in respect of allegations concerning the Chakola/Kangaroo Valley camp because of what was described as "the unequivocal evidence" that Futcher did not attend those camps. After setting out the inquiries which were made, it was submitted that Trinity could not respond to the allegation that at the time it knew of or sanctioned the Colo River camps or the Macquarie Fields/Georges River camp. It was, however, accepted that the 1977 edition of "The Triangle" stated that by that time there were "weekend camps" at Colo River which boys in fifth and sixth class attended.
It was suggested in argument that inquiries could be made of the respondent's classmates at the time who may have attended the same camp. In response, senior counsel for Trinity submitted that students of five or ten years of age were "not apt to recall" the relationship of the camp to the school. He stated that the evidence was clear that there was an annual camp going to Colo and young students would not know of the role Trinity actually assigned to the teachers who went to the camp.
Senior counsel for Trinity stated that the primary judge was in error in stating the issues surrounding the non-delegable duty and vicarious liability were "so similar" that they could be dealt with together (see [305] above) submitting that it was necessary to consider each individual claim. He submitted in relation to vicarious liability, it is necessary to focus on the relationship between Futcher, the school, the children and their attendance at the camp. In the case of non-delegable duty, it was necessary to concentrate on the material and information that it was alleged came to the attention of the Reverend Sandars.
Senior counsel for Trinity said that the primary judge fell into error in stating that the respondent had a strong case. He submitted that to focus on the respondent's case to the exclusion of what might become available to deal with the claim would be in error. He submitted that it was unclear why the primary judge stated it was a strong case.
Senior counsel for Trinity stated that the primary judge's comments to the effect that even if witnesses were available, they would be faced with cross-examination over the reference to "our camps" (see [306] above) conflated all camps. He submitted that it was made clear to the primary judge that "the Kangaroo Valley camps were never in dispute".
It was further submitted that the reference by the primary judge to Futcher being placed "in a position of trust with students" beyond classrooms, such as in a sports context or as a swimming or lifesaving coach, "in effect is diverting away from the real question because the questions of abuse for vicarious liability" in "being in the car on the way to sports might be relevant to that but one has got to know what the policies were". He submitted that notwithstanding the primary judge's reference to United Kingdom and New Zealand authority, the case should be decided on what was said by the High Court in Lepore and Prince Alfred College.
Senior counsel for Trinity rejected the proposition that the absence of the Reverend Sandars had to be weighed against the fact that teachers who made statements said they never went to the Colo River camp and were never directed to go. He submitted that the difficulty with that proposition was that "the mind and strength of this whole school lay in the Reverend Sandars". He said that the fact that he did not direct some teachers to go did not prove that he did not direct or approve of Futcher doing it. He submitted that the application was not a "mini" hearing of the proceedings and it had not been stated how the respondent would run its case.
Senior counsel for Trinity stated that ground 2(b) was concerned with that part of the primary judge's reasons at [100] which seemed to consider it relevant that there was no suggestion that the school could not meet any damages as a relevant factor in assessing the prejudice from the absence of insurance (see [328] above). He referred to the fact that courts have held that the inability to determine if one is insured or not is highly relevant because it can be unfairly burdensome on a defendant being exposed to something to which it would not have been exposed had the proceedings been brought earlier.
Senior counsel for Trinity submitted that the conclusions of the primary judge "in large part [were] concerned with criticising the school's investigation", submitting that it was "not clear" that the primary judge considered whether there could be a fair trial and how he took that matter into account. He submitted that it was implicit in the approach of the primary judge at [133] that he accepted that Trinity "did not have available to it sufficient information to fairly meet the allegation[s]" (see [339] above). He submitted that the primary judge correctly summarised the Reverend Sandars' position at [63] (see [310] above). He submitted that the primary judge's attack on the investigation involved identifying people who were connected with the school and some who were not and to criticise Trinity for "not going on a fishing expedition" on the off chance that such people may be able to give evidence. He submitted that this approach was unjustified.
In that context, he referred to the primary judge's criticism of the failure to seek to contact the Reverend Sandars' daughter or granddaughter, Deborah Sandars. He submitted that the only reference to the relationship was in the Reverend Sandars' death notice, ultimately accepting that she could be a daughter or a granddaughter. Having regard to the reference given by Mr Wilson-Hogg (see [282] above), it seems more likely that she was his daughter. In any event, senior counsel for Trinity submitted that there was no basis to infer that she would know anything about the camps.
So far as ground 3(e) was concerned, it was submitted that the primary judge erred in concluding at [86] that the structure of Trinity had "not been adequately explained" (see [321] above). Senior counsel for Trinity submitted that the evidence made it clear that the Reverend Sandars had "unilateral control" over the Preparatory School which was on a different campus. He submitted that the statement of Mr West showed that the running of the Preparatory School was left to the Reverend Sanders.
In relation to ground 3(j), it was submitted that the primary judge's comment at [92] that Trinity had made no attempt to contact the police or the Crown concerning the missing material (see [92]-[93] and [119] of the primary judgment so far as it related to the police) was "simply wrong". He submitted that Trinity and the respondent issued subpoenas to the NSW Police, the Queensland Police and the Director of Public Prosecutions seeking all relevant documents. Annexure B to Trinity's initial submissions sets out the subpoenas issued by both parties and it was submitted that the scope of the inquiry was "comprehensive". It was also submitted that it was clear from Mr Dungan's evidence that what was described as "the missing material" had not been given to the police. He referred to the exhibits to Mr Dungan's affidavit which showed that the police were not searching for the material described by the primary judge as "the missing material" and the 2014 search warrant did not cover that material. He submitted that it was "perfectly clear" that Trinity "did all it could" to find all records relating to the respondent or Futcher pertaining to matters the subject of the proceedings.
Senior counsel for Trinity stated that ground 4 of the grounds of appeal concerned his Honour's findings concerning the deceased Headmasters, the Reverend Sandars, Mr Wilson-Hogg and Mr West. He pointed out that the primary judge concluded at [95] that there was no evidence that the police did not interview the Reverend Sandars between 1997 or 2012 or that Trinity had been denied a version of events by him or sought to obtain from prosecuting authorities a version which might otherwise exist (see [325] above). He also pointed out that the primary judge also found at [107] that it had not been shown that no statement was available from the Reverend Sandars or Mr Wilson-Hogg and that Mr West had made a statement to the police (see [330] above). He also pointed to the primary judge's ultimate conclusion on this issue at [131] to which I have referred at [338] above and, in particular, his remarks that "notwithstanding the carefully structured Affidavits … these Affidavits do not assert that there is no statement as to the relevant circumstances by Reverend Sandars, or by either Mr West or Mr Wilson".
Senior counsel for Trinity submitted that this conclusion was "wholly insupportable". He referred to the police search warrant, the subpoenas and the fact that the respondent did not tender any such material.
In that context, he also referred to the evidence of Mr Thompson as to the material Trinity handed over to the police, stating that for his Honour's comments to be correct, Trinity must "have held back other relevant statements which hit had". He submitted that the Reverend Sandars had died by the time Mr Thompson was engaged and the affidavit of Mr Thompson particularly paragraphs 61 and 75 (see [263] above) would be "worse than misleading" if the posited statements existed. He also pointed out that neither Mr Thompson, Mr Dungan nor Mr Riordan were cross-examined on this issue.
In addition, Trinity tendered over an objection a subpoena served on it by the respondent which sought "letters, files, notes, memorandum notes, emails, statements and other documents relating to any complaints and/or concerns made against Futcher and any documents relating to any investigation of these complaints and/or concerns held by the school".
Senior counsel for Trinity also referred to the affidavit of Mr Dungan to the "effect that the school provided all assistance to the police in respect of records and the like but otherwise determined to leave the examination of these events to the police". It was pointed out that Mr Dungan was not cross-examined on these statements.
Ground 3(k) of the grounds of appeal challenge the finding of the primary judge at [126] to the effect that the plaintiff and his parents were available to give evidence and that the parents could be cross-examined as to the documents that were provided that persuaded them to send their sons to the camps in question, the circumstances which gave rise to the level of trust that was reposed in Futcher, and whether the conduct of Trinity played any part in those circumstances. He referred to the statement of Ms Anderson stating that it was clear that she had "no specific recollection of particular camps, let alone any documents provided" by Trinity in respect of them.
In relation to ground 7, senior counsel for Trinity emphasised in his submission that the primary judge conflated the camps. In written submissions in support of this ground, it was also submitted that the primary judge wrongly assumed that each of the assaults was alleged to have occurred at camps and whether or not the assaults occurred was not an issue. It was pointed out that the only assaults admitted were those in respect of which Futcher was not convicted and which could not "reasonably be argued form the basis of a vicarious liability claim". It was also submitted that the primary judge erred in conflating the Cub Packs with the camps.
Senior counsel for Trinity stated that ground 8 covered three factual matters. The first was the statement by the primary judge at [100] that "even if insurance existed, it may not have covered the damages in question". He submitted that the evidence of Mr Dungan showed that it was likely that Trinity would have had insurance and that it was "all risks" cover. He submitted that in those circumstances his client's position was as stated by Bryson JA in Batistatos. In addition, he submitted that if the policy could not be found, the insurer could not be identified and the terms of the insurance could not be identified, so whilst it was "logically possible" that there was an exclusion in the policy that "in effect, shows the oppression".
The second matter the subject of this ground was what was said to be the reliance by the primary judge at [107] on the fact that Mr West said in his statement that he knew of "some" camps in the Colo River. It was submitted that that statement was at "such a level of generality and vagueness" so as to address none of the questions in issue.
The third matter the subject of this ground was the suggestion that Trinity turned a blind eye to what occurred. It was submitted that there was no suggestion of that occurring.
In relation to the re-exercise of the discretion, senior counsel for Trinity submitted that what was said by the Court in Moubarak showed a stay was justified. He submitted that it was a case which could not be run in "anything other than a formalistic sense" and "ought [to] be stayed".

(b) The respondent's submissions

Senior counsel for the respondent submitted that the question was whether the decision, not the reasons for it, is of "sufficient doubt" to warrant the grant of leave and whether there would be "substantial injustice" if leave was refused. He submitted that "whatever might be said of some of the reasons, the order was a proper one and cannot be demonstrated to admit any doubt at all but certainly not sufficient doubt". He submitted that no substantial injustice "would result if leave is refused as the case will be tried by a professional judge sensitive to the interests of both parties".
Senior counsel for the respondent submitted that the test to be applied was set out in the decision of the High Court in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [69]. In that case, the Court (Gleeson CJ, Gummow, Hayne and Crennan JJ) emphasised at [69] that "as in the circumstances of the present case, attention must be directed to the burdensome effect upon the defendants of the situation that had arisen by lapse of time".
Senior counsel for the respondent submitted that the effect of s 6A of the Limitation Act was "to allow proceedings to be brought at any time" to deal with child sexual abuse and "it is only where a fair trial is not possible that the extraordinary and exceptional power of [a] permanent stay is available". He said that the purpose of such a stay "is not the interests of the parties so much as the integrity of the court's processes". He submitted, referring to Cox v Journeaux (No 2) (1935) 52 CLR 713 at 720; [1935] HCA 48, that "in general, it is paramount that the principle that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed".
Senior counsel for the respondent stated that he relied on three propositions. First, any burden on Trinity arising from "the absence of evidence from the Reverend Sandars is not so serious that a fair trial is not possible". Second, "any burdensome effect is not the product of [a] lapse of time" but a failure on the part of Trinity "to make appropriate inquiries and take steps to preserve documents and recollections in a timely manner". He pointed out that the school became aware of the allegations in 1997. He submitted that "whether or not the school was to protect itself in terms of preserving evidence and corralling documents and the like, it beggars belief … that it wasn't carefully investigated to protect the integrity of the school and the safety of its students".
His third proposition was that if the test is unfairly or unjustifiably oppressive as to constitute an abuse of process, rather than no fair trial is possible, "there can be no different outcome".
In dealing with the evidence, senior counsel for the respondent first referred to the letter from Mr Wilson-Hogg to the Reverend Sandars of 1 July 1968 concerning Crusader Camps (see [279] above). He accepted that there was material which could distinguish the Crusader Camp from others, but nevertheless, he said that it was relevant in that it showed "as early as 1968 the school was promoting and encouraging the attendance at school camps".
Senior counsel for the respondent referred to the Headmaster's files exhibited to the affidavit of Mr Riordan in support of the proposition that the Reverend Sandars was "not a one-man band" or "the sole repository" of information relating to issues in the case. He stated that the Reverend Sandars was subject to the oversight of Mr Wilson-Hogg and Mr West and referred to material in the Headmaster's file to show that "he was put back in his place", his reference in that context was to the debate about who would conduct weddings which I have summarised at [280] and [287] above. Notwithstanding, he accepted that the Reverend Sandars was Master in Charge of the Preparatory School, gave directions and "oversaw the various activities" including camps of "a number of different kinds over quite a number of years".
Senior counsel for the respondent submitted that Futcher was put in charge of a sixth class and was required to be engaged in extra-curricular activities which included camps. He submitted referring to Prince Alfred College that the position of a teacher involves a relationship of control, authority and prima facie trust. He submitted that "if a teacher is given children into his care to take on camping excursions mid-week or on weekends with the school's authority, that gives the opportunity for intimacy in its broadest sense" and may give rise to vicarious liability for the abuse.
Senior counsel for the respondent submitted that the material before the Court demonstrated that the school through the Reverend Sandars, the Headmaster and "inferentially through the school executive for a long time promoted and encouraged the use of camps" and "expected that teachers who were engaged to work in the school would involve themselves in those activities". He submitted in that context that the letter of 1 July 1968 from Mr Wilson-Hogg to the Reverend Sandars concerning Crusader Camps informed the question of the extent to which "teachers were placed in positions of authority and the like outside the school environment as such".
Senior counsel for the respondent then relied on a number of documents to demonstrate the Reverend Sandars was not autonomous in the administration of the Preparatory School. The first of these documents was a letter of 25 March 1971 from Mr Wilson-Hogg to the Reverend Sandars referring to a meeting of staff from both the Senior School and Preparatory School and asking for his "help and co-operation" in the organisation of follow-up meetings. He submitted that this showed a degree of oversight by Mr Wilson-Hogg. He referred in the same context to a request by Mr Wilson-Hogg that the Reverend Sandars liaise with the librarian to which I have referred at [283] above and the reference given by Mr Wilson-Hogg to a primary school teacher to which I have referred at [285] above. He also referred to a letter from Mr Wilson-Hogg to the Reverend Sandars asking him to ensure that all boys take home a letter to their parents concerning the results of categorisation in the Karmel Report and a request that a particular student be put on the top of the school waiting list as the school was running short of boarders.
Senior counsel for the respondent referred to the controversy concerning who was to marry Old Boys to which I have referred at [280] and [287] above. Senior counsel for the respondent submitted that the controversy was settled by the Bishop in favour of the School Chaplain over the Reverend Sandars. He submitted "a number of things" flowed from this. First, he submitted that it showed that Old Boys kept in touch with the school and were "an available source of information about how the school was organised". Second, he submitted that it showed that the Reverend Sandars was not only subject to the direction of Mr Wilson-Hogg but also to the direction of the Bishop. Third, he said that it raised the question of whether any other documents may be held by someone other than the archivist at Trinity. He accepted that this was not explored in any detail in the Court below.
In making these submissions, senior counsel for the respondent emphasised that the question was whether there were resources available to enable the case to be fairly tried, not whether Trinity could try it successfully. He submitted that there were resources available to enable the school to be informed about the relevant events.
In that context, senior counsel for the respondent also referred to the statements and affidavit of Mr Connors. He acknowledged that Mr Connors stated that he did not have any recollection of camps at Colo River but submitted that "the processes of inductive reasoning with particulars of various activities and the like can inform the Court to make a finding of fact by a process that doesn't require direct evidence". He submitted that Futcher was "employed as a teacher to take part in extracurricular activities went on camps that the school authorised, promoted and in some cases organised". He submitted that there was enough material to deal with the issue of whether Futcher had the necessary control, authority and intimacy.
Senior counsel for the respondent said that the other boys assaulted by Futcher did not "throw any light" on the issue of whether the case could be tried fairly, other than the fact that they were available as a resource to the school. He said that it was not common ground that they were unable to assist Trinity. In answer to a question to the effect that if he contended they could in fact assist why the material was not put before the Court, he responded that the respondent did not have to do so and Trinity bore "the very high bar" of showing that a stay was necessary.
He submitted that all he had to do was show that those people were available.
Senior Counsel for the respondent also referred to the statement of Mr Christie and stated that Mr Christie had "a good recollection of the events and the way in which the school was organised and conducted" which would enable Trinity to inform itself of the matters referred to in Prince Alfred College at [81]-[84]. He made similar submissions about Mr Tritter.
Senior counsel for the respondent also submitted that the statements had been taken not by lawyers but by private investigators. He said that it was "a fair inference" that "if they were carefully proofed by lawyers directing attention to the real issues" they would have "more to say". He made similar comments in respect of Mr Southward, Ms Diamond, Ms Ballard, Ms Brown, Ms Harris, Mr Perini, Mr Johnson and Mr Scott. He submitted that the "mere fact" that these witnesses did not refer to some particular element of the statement of claim demonstrated that Trinity was in a position to take instructions and cross-examine witnesses.
In those circumstances, senior counsel for the respondent submitted that what the "body of material" demonstrated was that Trinity was in a position to respond to the proposition that Futcher in his relationship with the respondent bore the authority and standing of a teacher and what gave the occasion for the abuse was the relationship that was brought into existence by the school.
He further submitted that the relevant test for liability is not formulated with respect to schools or religious institutions but rather with respect to the attribution of vicarious liability generally. He submitted that the role of a teacher in itself was "a special role" and if one is dealing with extra-curricular activities the role is "special because the child is being placed in the care of a teacher outside [the] school environment without the opportunities for oversight". However, he accepted that in considering the question of a stay, it was necessary to focus on the particulars to the Statement of Claim to which I have referred at [32]-[34] above.
Senior counsel for the respondent submitted that the notification of the claim in 1997, the letter from Hannigans in 2004 and the initial demand from Porters Lawyers provided an opportunity to investigate the claim and also to investigate the insurance issue.
He also submitted that it was "a fair inference" from the reference given by Mr Wilson-Hogg that Deborah Sandars was the daughter of the Reverend Sandars. He submitted that no one had asked her what was retained in the family archives. He submitted that without that having been dealt with "the high bar" confronting Trinity had not been met. He submitted that Trinity could apply for a further stay if such an inquiry proved fruitless.
Senior counsel for the respondent also referred to the reference to the "Colo Weekend Camp" (see [228] above) submitting that it showed that if the camp was not organised by Trinity, it was "certainly promoted" by Trinity. He accepted that all the material relating to Colo River related to activities in 1977.
So far as the allegation relating to the driving of a car was concerned, senior counsel for the respondent submitted that if teachers were permitted "to carry students in their personal vehicles" to and from school sport that was "a role given to the teacher by the school". He said that permission was given by some unidentified person at the school. He noted that Mr Connors in his statement said he "did not consider it odd" (see [114] above).
Senior counsel for the respondent submitted that irrespective of the particulars supplied, if there was a case available on the evidence the proceedings ought not to be stayed and the application "ought not go off on a matter relating to particulars". He submitted that "[t]here is more than adequate material to demonstrate that the Court is capable of fairly trying the case".

Senior counsel for Trinity submitted that the debate as to who was to conduct weddings at the School Chapel was entirely irrelevant.
He submitted that no other witness could speak of the Macquarie Fields camp, the Munjon camps and the notification of the abuse to the Reverend Sandars which was at the heart of the non-delegable duty of care. He stated that there was a "theoretical possibility that their recollection might be refreshed by a document" but there was no document directed to the time that the events occurred. He submitted that the reference to Deborah Sandars was speculation. He referred to the suggestion by senior counsel for the respondent that tendency evidence was to be called, stating that Trinity did not have "the faintest idea" of what the tendency evidence referred to was. He submitted that if the respondent was aware of any other material, he was in a perfect position to have it produced.
Senior counsel for Trinity submitted that "the real question" was "does the material of these witnesses give the Court any ability not to be satisfied that the conduct of this case would be manifestly unfair to my client, and that comes down to a speculation" that the witnesses might remember something else after "47 years or 50 years" after the event. He submitted that the Court should proceed on the basis that the case as pleaded was responsibly pleaded and the respondent was in a position to lead evidence about each and every element.
Senior counsel for Trinity stated that the insurance question goes to the fairness of the trial.

(a) Should leave to appeal be granted?

The principles concerning the grant of leave to appeal are well established. Although it is inappropriate to lay down rigid and inflexible rules concerning the question (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39), generally leave will not be granted unless the matter involves issues of principle, a question of general public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable: Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Zelden v Sewell Henamast Pty Limited v Sewell [2011] NSWCA 56 at [22]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[33].
There is force in the respondent's submission that the application is to seek leave to appeal not from the reasons but from the result. However, where, as in the present case, there are powerful arguments that the trial judge erred in law such that the discretion should be re-exercised and where, as here, the result of an incorrect exercise of discretion would cause substantial injustice to Trinity, it is appropriate that leave be granted. Further, the approach that the Court should take in cases of this nature, which are likely to reoccur, is a matter of some considerable importance.
In these circumstances, it is appropriate that leave to appeal be granted.

(b) The principles surrounding the grant of a permanent stay

The grant of a permanent stay having the effect of depriving a litigant of the right to prosecute his or her case in a court is an exceptional remedy. As was pointed out by Dixon J in Cox v Journeaux at 720, in a passage relied upon by the respondent, that "[t]he principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed".
In Batistatos v Roads and Traffic Authority (2006) 226 CLR 256; [2006] HCA 27, a majority of the High Court upheld the granting of a permanent stay by this Court in proceedings brought by an intellectually disabled plaintiff for damages for injuries he suffered in a motor vehicle accident which occurred some 29 years earlier. The action was brought against the municipal council and the road construction authority responsible for the construction and maintenance of the road. The relevant limitation period to bring such an action was suspended by virtue of the appellant's disability, subject to an ultimate bar of 30 years.
The majority (Gleeson CJ, Gummow, Hayne and Crennan JJ) at [15] cited with approval the remarks of McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42, to the effect that abuse of procedures usually fell "into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties, or; (3) the use of the court's procedures would bring the administration of justice into disrepute". The categories overlap. In any event, it is clear as Gaudron J emphasised in Ridgeway v The Queen (1995) 184 CLR 19 at 74-75; [1995] HCA 66, that the concept of abuse of process "extends to proceedings that are 'seriously and unjustifiably burdensome, prejudicial or damaging', or 'productive of serious and unjustified trouble and harassment'" (citing Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247; [1988] HCA 32; Hamilton v Oades (1989) 166 CLR 486 at 502; [1989] HCA 21).
Although each case must of course depend on its own facts, it is instructive to set out the reasons why the majority in Batistatos v Roads and Traffic Authority (2006) 226 CLR 256; [2006] HCA 27 regarded the grant of a stay appropriate in that case. They summarised the effect of the lapse of time in the following terms at [37]: "It is useful to note the effects of the lapse of time relied upon by the defendants in support of the contention that a fair trial was no longer possible. In their written submissions before this Court, these related generally to the deterioration of the evidence and encompassed six broad grounds: (1) the inability to obtain any police records of investigations relating to the accident; (2) the inability to locate hospital or medical records concerning the plaintiff's treatment before 1980; (3) neither the Council nor the RTA had most of the documents relevant to the design and construction of Fullerton Street for the period from 1965 to 1980; (4) difficulty in identifying and locating any person who had active involvement in road maintenance work in and before 1965 who could give evidence of considerations affecting design and construction; (5) the inability to locate any record that could assist in proving the insurer on risk at the relevant time; and (6) the physical state of the road where the accident occurred had altered substantially due to a reconstruction of Fullerton Street carried out by the Council in or about 1985 eliminating the bend which the plaintiff had alleged caused the accident (such evidence as remains regarding the reconstruction not bearing on establishing the signage, vegetation, lighting or other relevant circumstances at the time of the accident). The first four grounds were considered in detail by Hoeben J, whereas the latter two (while raised before Hoeben J) assumed greater significance before the Court of Appeal."
Trinity submits that it faces problems of a similar kind in the present case.
Recently in Moubarak, Bell P at [77] stated that unfairness arising from the effluxion of time may result from "the impoverishment of the evidence available to determine the claim". He said that this consequence was "less likely to be a critical factor where the resolution of a case turns predominantly on documentary evidence". That, of course, depends on whether the documents remain available: see R v Davis (1995) 57 FCR 512 at 520-251.
It must also be kept in mind that lengthy delay of itself does not justify a stay. In Jago v District Court (NSW) (1989) 168 CLR 23 at 34; [1989] HCA 46 ('Jago'), Mason CJ stated that "[w]here delay is the sole ground of complaint, an accused seeking a permanent stay must be 'able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute'" and that "there is no right to … a trial within a reasonable time independent of the right to be protected from unfairness resulting from undue delay". These statements apply equally to civil trials.
Further as Bell P pointed out in Moubarak at [89], "a fair trial is not synonymous with a perfect trial". The absence of documents or witnesses, even if regarded by the party as significant, will not, of itself, be such as to warrant a stay. A stay is warranted only where the delay and consequent loss of documents or witnesses is such that, as Mason CJ pointed out in Jago, any trial is so unfair and burdensome so as to bring the administration of justice into disrepute.
The introduction of s 6A of the Limitation Act into the statute does not affect the position. Section 6A(6) expressly preserves the power of the Court to grant a stay in the circumstances to which I have referred: see also Moubarak at [32]-[38] where the extrinsic material surrounding the introduction of the provision is discussed.

A decision to grant or refuse a stay is a discretionary one (see Jago at 31; Medich v R (2015) 97 NSWLR 358; [2015] NSWCCA 281 at [133]-[137]), in respect of which the principles in House v The King (1936) 55 CLR 499 at 504-506; [1936] HCA 40 should be applied. This is of some importance in the present case because a number of the grounds of appeal do not demonstrate an error of law or mistake of fact but are whether conclusions reached by his Honour from material before him may not be open to discretionary review: see, for example, ground 8.
However, there are a number of areas where, in my opinion, the primary judge did err in the House v The King sense in reaching his conclusion. The first of these was as submitted by senior counsel for Trinity (see [370] above) that the primary judge failed to give separate consideration to the claims based on breach of the non-delegable duty and the claims based on vicarious liability.
Although the pleading does to some extent conflate these issues, particularly in relation to breach, they are separate issues. Put shortly, in the present case, Trinity would only be in breach of its non-delegable duty if, in fact, it failed to exercise reasonable care to protect the respondent from any reasonably perceived risk arising from Futcher's employment and his interaction with pupils, including the respondent. This involves consideration of what inquiries were made prior to Futcher being employed by Trinity and, for example, the systems and procedures put in place to protect pupils from any reasonably perceived risk. It would also involve the question of whether Trinity became aware during the course of Futcher's employment that Futcher or other teachers were abusing students and the steps put in place to prevent that occurring. However, as senior counsel for Trinity pointed out, the breach of the non-delegable duty does not arise solely from the fact of the criminal conduct constituting the sexual assault: Lepore at [38]-[39], [265]-[270] and [291].
By contrast, the claim for vicarious liability does not depend on a breach of the non-delegable duty but rather the role that Trinity assigned to Futcher and whether its performance may "give the 'occasion' for the wrongful act": Prince Alfred College at [81]. The inquiries relevant to a claim for vicarious liability, although potentially overlapping, raise different issues. The first inquiry looks to the wrongful acts or neglect of the school in determining whether the assaults were caused by the breach of the non-delegable duty. The second inquiry rather looks to the position the school placed the teacher and whether that gave the 'occasion' for the assault. The focus by the primary judge solely on vicarious liability and particularly the circumstances surrounding the camps, overlooks this distinction.
The second, and perhaps more significant error, in my opinion, arose from the conclusion of the primary judge that all available material had not been sought from the police and his conclusion that it had not been established that a statement from Mr Wilson-Hogg or the Reverend Sandars was not in existence. His Honour's statements that Trinity had "adduced no evidence to show an attempt by it to contact the Police or the Crown in relation to this 'missing' material" and that if there was a file or were files, it was "most likely that Police would have obtained it or them, either with the consent of Trinity or during the execution of its search warrant" (see [92]-[93] of the primary judgment, [324] above) was not put by the respondent in the Court below. These statements by the primary judge ignore the fact that subpoenas issued to the Director of Public Prosecutions and the police would have covered that material and further, does not deal with what was said by Mr Thompson in paragraph 75 of his affidavit on which he was not cross-examined.
Further with respect, there was no basis for the conclusion by the primary judge that Trinity had taken "no steps to seek" material relating to the Reverend Sandars and the camps from the Director of Public Prosecutions or the police (see [102]-[103] of the primary judgment). I have already referred to the subpoenaed material. Further, the comment by the primary judge at [104] that Trinity waited until all police exhibits were returned to their owners on 1 February 2017 before requesting any documents overlooked two matters. The first was that the letter to which the primary judge made reference in his judgment was a letter of 16 October 2017 from Mr Thompson's firm to Ashfield Police seeking clearer or complete copies of two letters, one from T G Jones, the Headmaster of Sydney Grammar Preparatory School in St Ives dated 21 November 1972 and another described as "Teaching Documents addressed to FUTCHER" from "Cropper Island School" in "early 1970". These institutions were previous employers of Futcher. I have set out the inquiries made of these institutions at [262]-[263] above. The teaching documents held by Cropper Island School presumably are the teaching documents referred to in that inquiry.
Second, to the extent that the documents were returned to Trinity, the comments of the primary judge ignored Mr Thompson's evidence that all records of Trinity had been produced (paragraph 75(a) of Mr Thompson's affidavit, see [264] above). It also ignores the fact that it was not suggested to Mr Dungan in cross-examination that any document returned to Trinity by the police had not been disclosed.
It is in that context that the primary judge's comment concerning the potential availability of a statement from the Reverend Sandars, Mr Wilson-Hogg and Mr West is to be considered. I have set out the conclusions of the primary judge on this issue at [332]-[333] above. In particular, he drew an adverse inference from the failure of Mr Thompson to say that no such statement existed. He made similar comments in his conclusions ([131]-[132] of the primary judgment, see [338] above).
There are a number of quite significant difficulties with this conclusion. First, Mr West had made a statement to the police which was in Trinity's possession. Second, Mr Wilson-Hogg died on 6 May 1997 before any complaint was made to Trinity. Third, if there were any such statements or documents in existence, Mr Thompson's affidavit at best would be misleading. It was not suggested to him or Mr Dungan in cross-examination that a statement of the Reverend Sandars whether made to the police, the Archdiocese or otherwise, was in existence. To say one might exist was, with respect, speculation. His Honour erred in taking this matter into account.
The third error in my respectful opinion was what senior counsel for Trinity described as conflating the camps. It was not in issue that the Chakola camps were annual school camps and either sanctioned or organised by the school. What was critical was whether the Colo River camp or the Macquarie Fields camp fell into that category of a camp either sanctioned or organised by the school. The first reference to the Colo River camp was in 1976 in Mr Simms' statement (see [191] above) and in 1977 in the Bulletin of 11 November 1977 (see [229] above). The camps referred to in the earlier material and in particular in the reference to "our camps" did not on their face relate to the Colo River camp or the Macquarie Fields camp.
This matter assumed some importance for the primary judge who stated that those teachers who proffered no knowledge of the Colo River camps could have been cross-examined on the reference to "our camps" and that this may have refreshed their memory. There was no basis to conclude absent further evidence, that any Colo River camps which were conducted in 1974 were "our camps" in the sense described in the Trinity material. Such evidence as there is of the Colo River camps suggests that whether or not they were sanctioned by Trinity, they were not camps conducted by Trinity, unlike, for example, the Chakola camps and the camps run for infants.
Having regard to these issues, it is necessary to re-exercise the discretion.

(d) Should the discretion be re-exercised?

One difficulty in considering this issue is that it is by no means clear how the respondent proposes to present his case. However, as I have indicated (at [409] above) senior counsel for the respondent accepted that it was necessary in considering whether a stay is to be granted to focus on the particulars to the Statement of Claim.
It is thus necessary to consider whether the bringing of the claim as pleaded and particularised is oppressive to Trinity in the sense to which I have referred.
Senior counsel for Trinity correctly stated that the assaults pleaded fell into four categories. None of them are admitted in the amended defence although the Court was informed that Trinity admitted that the assaults in respect of which Futcher was charged and convicted took place. The charges related to assaults in the Drummoyne unit in 1975 and other assaults which took place after the pleaded period. As I have pointed out, in 1975 the respondent was no longer a student at the Preparatory School.
It should be assumed for the purpose of the application that the respondent is in a position to produce evidence to support the case pleaded and particularised. The question is whether, in light of the matters raised, Trinity can meaningfully deal with the allegations, or whether the proceedings are unjustifiably oppressive to Trinity, or whether, having regard to the position of Trinity, the continuation of the proceedings will bring the administration of justice into disrepute.
Although the primary judgment and the submissions on behalf of the respondent focus to a considerable extent on the deficiencies in Trinity's investigations and the possibility of further material emerging, it is important first to consider whether, on the material presently available, Trinity is in a position to meaningfully contest the claim. It is necessary to do so with reference to the specific allegations of assault pleaded, the causes of action relied upon and the particulars of the breach of duty given in respect of each assault.

(i) Liability for breach of non-delegable duty in respect of assaults other than those which occurred at the camps

The first allegation of sexual assault pleaded was a single occurrence in 1974 where it is alleged that Futcher, whilst transporting the respondent from the Preparatory School to the school's sportsground, showed the respondent pornographic materials (Statement of Claim paragraph 6(a) and (b)).
Liability for this assault would seem more likely to arise from breach of the non-delegable duty rather than as a result of vicarious liability. The respondent first asserted that by "late 1975, if not earlier", Trinity knew or ought to have known that Futcher posed a risk to students. It is difficult to see what relevance this has to the 1974 allegations. However, the matters said to give rise to that knowledge were a complaint to the Reverend Sandars in 1975 and an admission by him in 2007.
The complaint was said to have been made to the Reverend Sandars by Peter Green in company with his mother. The Reverend Sandars is unavailable to say whether it occurred and if it did what steps he took in relation to it. None of the teachers had any recollection of it. Mr West, who is now deceased and who was Headmaster of Trinity at the time the alleged complaint was made, stated that he had "no knowledge of Neil Futcher sexually or physically abusing TGS [Trinity] students or other boys". Other teachers at Trinity at the time stated that they knew nothing of the allegations of sexual abuse by Futcher - see Mr Connors at [108] above, Mr Jockell at [117] above, Mr Tritter at [126] above, Ms Diamond at [142] above, Ms Ballard at [156] above, Ms Brown at [165], Mr Scott [181] above, Mr Simms at [196] above, Mr Perini at [208] above and Mr Rasmussen at [216] above. It may be that the Reverend Sandars did not mention the complaint to anyone else. However, the only person who could deal with it and the very important question of the knowledge Trinity had of the danger posed by Futcher at or about the relevant time, was the Reverend Sandars.
The second matter said to give rise to the knowledge of Futcher's conduct at the relevant time arose from the conversation between the Reverend Sandars and Ms Anderson which was said to have taken place in early 2007 (see [75] above). Because of the death of the Reverend Sandars, Trinity is not in a position to deal with that statement (to the extent that it would be admissible against Trinity) including whether it occurred, whether the Reverend Sandars was referring to sexual assaults and when did he acquire the knowledge which enabled him to give an affirmative answer to the question of whether he knew that "Futcher was attacking boys at the school and attacked Rob".
As I have indicated, senior counsel for Trinity contended that the Reverend Sandars ran the school as a "one-man band". The Preparatory School was on a different campus to the Senior School and for that matter, within the Preparatory School, pupils from Reception to Year 2 were separated from the later years. The evidence of the teachers demonstrated that the Reverend Sandars had effective operational control of the school - see Mr Connors at [113] above, Mr Southward at [137] and [138] above, Ms Diamond at [144], [146] and [149] above and Mr Simms [194] above. Although some of these teachers were interviewed by Mr Wilson-Hogg after the Reverend Sandars had offered them a position, the teachers concerned described that interview as a formality.
It was suggested by the respondent that there was material which showed the Reverend Sandars did not have "complete and absolute control" over the school as he was subject to the direction of Mr Wilson-Hogg and the Bishop. It was also implicit that the Reverend Sandars did not have such control in the criticism by the primary judge that the "formal structure" of Trinity had "not been adequately explained" (see [317] and [319] above), his reference to a letter of 9 September 2004 that Trinity was "under the control of the Synod", and his criticism of Trinity in failing to seek material from the Archdiocese or members of the school council.
The letter of 9 September 2004 to which the primary judge referred is a letter from the Anglican Church Diocese of Sydney to the Headmaster of Trinity stating that the Diocese had "established a Care & Assistance scheme" to enable matters such as the respondent's complaint "to be settled on a non-litigated basis". It said that it had not up to that stage "considered the possibility of including the claims which relate to schools under the control of Synod". It requested that the Headmaster "bring to the attention of Council the possibility of the scheme being used by Trinity Grammar School with appropriate contributions from the funds of the school". It was written in the context of the Diocese having been notified of the respondent's claim that he was "sexually abused by former teachers, Mr Neil Futcher and Mr Neville Betteridge". There is nothing to suggest that the Diocese had any other notification of that claim or had any involvement in the operation of the school. Further, there is nothing to suggest that the Diocese had anything further to do with the claim but to forward to the Headmaster the letter from the respondent's solicitors (Hannigans) of 7 December 2004.
Further, there is nothing to suggest that the school council had any involvement in the matter. Mr Thompson swore that he obtained "all available documentary material from Trinity". The documents produced did not include school council consideration of the issue. Further, Mr Dungan set out the steps he took on receipt of a complaint or a claim including one without insurance. There is nothing in the material to show that the school council was made aware of the matter when the complaint was made. Further, irrespective of the structure of Trinity, there is nothing to suggest that in 1974 or the surrounding years, either the Archdiocese or the school council had any operational involvement in the Preparatory School.
The respondent, in support of the proposition that the Reverend Sandars was subject to the directions of Mr Wilson-Hogg and the Bishop in the period in question, relied on a number of matters from Mr Wilson-Hogg's Headmaster's file. I have summarised these with reference to the relevant documentation at [340]-[401] above.
It does not seem to me that a determination of who would conduct weddings at the School Chapel, although no doubt important to those involved, supports an inference that Mr Wilson-Hogg or the Bishop oversaw the Reverend Sandars in his operation of the Preparatory School. Nor do I think a request that the Reverend Sandars ensure boys take home letters to their parents concerning the Karmel Report [1] supports the proposition. The request to arrange follow-up meetings with senior and junior school staff showed co-operation not oversight. The same may be said concerning the request that the Reverend Sandars contact the librarian to discuss how best for both schools the librarian's time could be used (see at [283] above).
Perhaps the most significant matter which suggests that there was oversight by Mr Wilson-Hogg was his rejection of the Reverend Sandars' proposal for the timing of testing of fourth and sixth class students (at [284] above). However, this was an isolated incident contained in files spanning over a number of years and does not suggest an ongoing operational supervision of the Reverend Sandars' activities.
In those circumstances, 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.
No assistance can be obtained from the teachers. To the extent that the statements and affidavits of the teachers dealt with transportation to and from sporting events, their evidence is vague and unhelpful. Mr Connors stated that students were "normally" bussed to sport and "staff were expected to travel in buses to supervise the students" (see [105]-[114] above). He stated that if any particular teacher drove them, he "did not consider it odd". Ms Diamond recalled the "little funny looking square bus" which was used to take the children to sport (see [147] above). Mr Simms stated that students were transported by bus and two trips were made if there was not enough room (see [195] above). Mr Pogson stated that "students were not supposed to travel by car", "they were supposed to go by bus and return by bus" (see [201] above). Mr Perini, Mr Rasmussen and Mr Johnson gave evidence to similar effect (see [207], [215] and [222] above).
Although it may be inferred from the evidence that students were required to attend sports training by bus, it does not deal with the question of whether any directions to that effect were given, much less the steps put in place to protect children generally. It thus seems to me that absent the Reverend Sandars, Trinity is not in a position to deal meaningfully with the allegation that the incident on the way to sport was caused by a breach of the non-delegable duty.
The same may be said concerning the second set of allegations, namely the assaults at Drummoyne. The respondent in his statement stated that these took place in 1974 and 1975 after which Futcher drove him home. He said nothing about how he came to go with Futcher to the unit at Drummoyne. Even if it could be assumed that Futcher picked him up from school or from a school activity, Trinity would encounter the same difficulty in dealing with this allegation as in dealing with the first allegation.
The third allegation of sexual assault dealt with incidents which occurred when Futcher was said to have picked up the respondent from Trinity Grammar in his van. The respondent in his statement seems to put these incidents no earlier than 1975 and does not seem to suggest that he was picked up from either the Preparatory School or the Senior School. Even if it could be assumed that the respondent is mistaken in his statement, Trinity encounters the same difficulty in dealing with the claim of non-delegable duty arising out of these assaults as with the first two sets of allegations.

(ii) Vicarious liability in respect of the first three claims of assault

I have set out what are claimed as "Particulars of vicarious liability of the defendant" at [37] above. The particulars in subparagraphs 13(a)-(g) seem to rely merely on the teacher-student relationship which existed between Futcher and the respondent.
Although it may be accepted that Futcher was a teacher at the school and at least in that capacity had some association with the respondent in 1974, that does not seem, in my opinion, of itself to give rise to vicarious liability having regard to what was said in Prince Alfred College. To establish vicarious liability it will be necessary to determine whether Futcher was placed in a position of power and intimacy vis-à-vis the respondent which gave the occasion for the wrongful acts, such that they could be regarded as having been committed in the course of Futcher's employment: see Prince Alfred College at [84]-[85].
If that is correct, the same difficulties arise in relation to the claim based on breach of the non-delegable duty. Trinity, in the absence of the Reverend Sandars, is not in a position to ascertain one way or the other whether it acquiesced in or authorised Futcher to transport the respondent to sport, to pick him up to take him to the unit at Drummoyne or to pick him up in his van. Trinity is unable to provide a meaningful response to the claim.
It should also be noted that it was alleged in the particulars that the school failed to remove Futcher from his "teaching position and/or camp supervisor position, following the disclosure by [Green] to Sandars in late 1975" (see subparagraph 12(r)). The difficulty with this is that by 1975 the respondent was in the Senior School and Futcher was not placed in a position of power and intimacy over the respondent. More fundamentally, because of the death of the Reverend Sandars, Trinity cannot deal meaningfully with that allegation.

(iii) The camps

The particulars of sexual assault allege that assaults took place at camps in Macquarie Fields and other locations such as Camp Chakola and the Colo River. Trinity accepted that Camp Chakola was a school camp and to the extent that the allegations were limited to abuse at that camp, it was in a position to meet them. The particulars of the breach of non-delegable duty allege that the camps were sanctioned by the school. The particulars of paragraph 12 of the Statement of Claim rely on a statement made by Futcher in his trial that in 1974, he informed the Reverend Sandars that he was organising camps at Macquarie Fields for "selected students from Trinity Grammar School" and the Reverend Sandars allowed Futcher to organise and attend these camps. It also relied on extracts from "The Triangle" in 1974 which referred to Crusader Camps in the Murrumbidgee area and the annual Chakola Camp and an extract from "The Triangle" in 1975 which promoted group vacation camps and class excursions. I have set out the detail of this material at [232]-[238] above.
There is no reference in the documentary material to the Macquarie Fields camp. I have set out the reference to the Colo River camps in the school material at [229], [237] and [238] above. None of these references relate to the period when the respondent was at the Preparatory School.
Limited assistance can be gained from the teachers who were interviewed as to the circumstances that students came to attend camps at Macquarie Fields or Colo River. Mr Connors was able to state that "Trinity had given approval [to the camps] as letters were sent home with students informing their parents about the camps". However, he stated that he believed the camps were held during school holidays as a private arrangement between the teaching staff who were organising them and parents who wanted their child to attend. In his affidavit, he stated that some holiday camps occurred at Colo River on weekends (see [112] above). Similarly, Mr Jockell was able to state that some parents were keen to pay for their children to attend camps during the school vacation periods and it was "lucrative" for the teachers who wanted to take the children on vacation. Mr Jockell stated that to his knowledge, it was "a private thing - a private arrangement between the teacher and the parents" and that "the school wasn't involved" (see [119] above). Mr Christie recalled that he organised a camp with the knowledge of the Reverend Sandars during school holiday time for students to Myall Lakes (see [172] above). He stated that he had the Reverend Sandars' permission to contact the parents to make the offer to take the children on camps during the school holidays.
Mr Tritter could only recall the Chakola camps. Mr Southward said that he believed the Colo camps were "a private thing". Ms Ballard said that there were camps at the Colo River but she was not involved in them. Ms Brown did not recall camps other than the Chakola camp. Ms Harris did not recall camps called Chakola or Colo River or Macquarie Fields. Mr Hines who was employed from 1976 said that he had "a vague recollection of a camp called Munjon/Colo River Camp" which he thought became part of the school outdoor education programme at a later time. This is consistent with the 1977 report in "The Triangle" (see [237] above).
The other information concerning the Colo River camps in the documentary material is summarised at [237]-[238] above and information concerning the Munjon camps at [239]-[242] above. This postdates the assaults.
There was also the statement made by Betteridge to Mr Riordan that the Munjon camps were run by Terry Simpkins who had left Barker College to run the Munjon camp full-time. He said that children attended from Barker and Trinity. He said that Futcher went up to the Munjon camps, "but not too often". Betteridge has since died.
There was finally the evidence of Mr Thompson of his unsuccessful attempts to obtain evidence from Mr Simpkins (see [256] above).
This review of the material demonstrates, in my opinion, that Trinity is unable due to the effluxion of time, the unavailability of witnesses, particularly the Reverend Sandars and the absence of documentation concerning the attendance of pupils at the camp, to deal in any meaningful fashion with the critical question of whether Futcher was placed by Trinity in a position of power and intimacy which gave the occasion for the wrongful acts.
The absence of the Reverend Sandars and the unavailability of documentary material mean that the same problems arise in respect to the claim for breach of non-delegable duty in relation to the camps as arises in relation to the other assaults. It should be noted that paragraph 13(h) of the particulars of vicarious liability which deals with the complaint by Peter Green, suffers from the difficulties to which I have referred in dealing with the other claims for breach of non-delegable duty.
In these circumstances, Trinity has made good the proposition that the material available to it is not such as to enable it to deal meaningfully with the claims against it. However, whether that leads to the conclusion that a stay should be granted depends on a consideration of two further questions: first, whether the inquiries made were adequate and second, whether it could be said that Trinity, by not investigating the claim earlier, was responsible for the position in which it finds itself.

(iv) The adequacy of the inquiries

The primary judge made a number of criticisms of the extent of the inquiries. I have already indicated that, in my opinion, the primary judge was incorrect in suggesting that undisclosed statements of Mr Wilson-Hogg, Mr West or the Reverend Sandars may have existed. I am also of the opinion for the reasons I have already given, that the subpoenas sent to the police and the Director of Public Prosecutions were wide enough to cover all material which remained in their possession at the time the subpoenas were issued.
I have also dealt with the criticism by the primary judge that Trinity had failed to deal with the "formal structure" of the school and the suggestion that he made concerning the statement in the letter of 9 September 2004 that the school was "under the control of the Synod".
The next criticism made by the primary judge was that there was a failure to obtain information from the council of the school and the Archdiocesan Council. So far as the school council was concerned, Mr Thompson stated that minutes of the school council had been obtained but not reports. Having regard to paragraph 75 of the affidavit of Mr Thompson which states that "all available documentary material from Trinity" was obtained, it can be accepted that any school council minutes relevant to the claim would have been disclosed.
So far as reports to the school council were concerned there is nothing to suggest that reports of arrangements for camps had been provided to the board. As the allegation of abuse was not reported to the school until 1997 there would be no reason for any report up to that time. Having regard to Mr Dungan's statement that the matter was left to the police to investigate, there is nothing to suggest that the council would have been supplied with any information. It should also be noted that the chairman of the school council at the time of the abuse, Mr Holt, died in 2004.
There is also nothing to suggest that the Archdiocese played any role in the operation of the school apart from occasionally involving itself in what might be described as spiritual matters. There is nothing to suggest that it would have any information concerning the camps or the sexual assaults which were reported in 1997.
The primary judge also stated that inquiries could have been made from parents of children who attended the camps at the time. However, even assuming that some of those parents had a recollection of the children going to the Colo River and Macquarie Fields camps in or around 1974 and giving permission slips for those children to go, it is at best speculation that one or more of those parents would be able to give evidence as to the structure of the particular camps in question or of matters relevant to the question of whether Trinity placed Futcher in a position to make it vicariously liable for his acts.
The primary judge also criticised the failure of Trinity in concentrating on upper primary teachers stating that the investigations should have been extended to lower primary school teachers, teachers in the early or junior years of the senior school and teachers who joined the Preparatory School after the respondent left Trinity (see [311]-[312] above). Mr Thompson in his affidavit stated his reason for not pursuing teachers who taught Kindergarten to Year 2 (see [252] above). His approach, in my opinion, was supported by the statements and affidavits of the three primary teachers who taught the early years of the primary school, Ms Diamond, Ms Brown and Ms Ballard. That evidence established that Kindergarten to Year 2 were housed in a separate building, went on separate camps and that these teachers had little or no knowledge of camps in the Colo River. A further lower primary school teacher, Ms Harris, did not add anything further. There is nothing to suggest that any other lower primary school teachers could have provided further information.
The primary judge's criticism of Trinity for failing to interview teachers who joined the school after the respondent left, in my respectful opinion, was not justified as it ignored the fact that a considerable number of the teachers interviewed remained at the school well after the respondent left; Mr Connors until 2014, Mr Jockell until 1982, Mr Tritter until 1977, Mr Southward until 2007, Ms Diamond until 2010, Ms Ballard until 2008, Ms Harris from 1977 until 1995, Mr Hines from 1976 to 1987, Mr Scott from 1976 to 1980, Mr Simms until 1977 and Mr Pogson until 1982. There is no reason to suggest that any other teachers who joined the Preparatory School after Futcher left would have any greater knowledge than those teachers, or that teachers who only taught in the early years of the secondary school would have any greater knowledge.
Further, there is nothing to suggest that the Reverend Sandars' daughter Deborah Sandars would have had any knowledge of the organisational structure of the school and particularly the organisation of camps throughout the upper primary school. The suggestion by senior counsel for the respondent that something might be retained in the family archives was, with respect, speculation. It was also unlikely that Barker College would have any material concerning Trinity's role in permitting the students to attend the camps that was not held by Trinity.
The primary judge also dismissed the absence of insurance as a relevant consideration (see [328] above). I have referred at [293]-[297] above to material which would suggest that insurance covering a claim of this nature existed at the time. The remarks of the primary judge that Trinity could meet the liability in any event, in my view, overlooks the prejudice which was described by Bryson JA in the Court of Appeal in Batistatos at [71]. Like the present case, there was nothing in that case to suggest that the applicant for a stay could not meet any verdict.
Senior counsel for the respondent, in addition to supporting the criticism of the primary judge, submitted that 'Old Boys' at the school were an available source of information. It was not made clear how they could assist. If they were in primary school at the time of the incidents, it would be extremely unlikely they would have any knowledge of the manner the camps were organised and promoted. He also submitted that those teachers from whom statements had been obtained could be further proofed or cross-examined by reference to the documents that were available and more information could be obtained from them. However, there were no documents relevant to the alleged breaches relating to assaults which took place other than at the camps, no documents relating to the Macquarie Fields camp and the only documents relating to the Colo River camp referred to a period after the applicant left the Preparatory School. It is speculative to say that more might be obtained from those teachers.
It is true as senior counsel for the respondent pointed out that Trinity needed to surmount a "high bar" to obtain the relief it seeks. It was necessary for it to make all reasonable inquiries to ascertain if material was available to enable it to meet the claim. However, that does not mean that it was necessary to pursue any line of inquiry however remote which may, as a matter of mere possibility, produce some information which may be of assistance in dealing with the issue. That would pose an unreasonable burden on the applicant and would of itself be oppressive and unfairly burdensome.
In my opinion, the inquiries made by Trinity were reasonable and demonstrate that notwithstanding those inquiries, Trinity cannot meaningfully deal with the claim against it.

(v) Is Trinity's inability to deal with the proceedings due to its own neglect or default?

This question was expressly left open by the primary judge ([132] of the primary judgment; see [338] above). Although no Notice of Contention has been filed, it was the subject of argument and it is appropriate to deal with it.
It must be emphasised that this is not a case where there was any suggestion of deliberate destruction of documents, whether before or after the litigation commenced: see the discussion in Lane v Registrar of Supreme Court (NSW) (1981) 148 CLR 245; [1981] HCA 35 at 260; British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197. Nor, despite the reference by the primary judge to "turning of a blind eye", was there any evidence to suggest that Trinity deliberately failed to inquire for fear of ascertaining the true position. Although senior counsel for the respondent stated that it "beggars belief … that it wasn't carefully investigated", the unchallenged evidence of Mr Dungan was that the investigation was left to the police.
There remains the question of whether the failure to investigate the claim earlier leads to the conclusion that Trinity should be denied a stay because had an earlier investigation been made, it would have been able to deal with the claim.
It seems to me that if, in the face of reasonably anticipated litigation, timely steps were not taken to gather evidence, whether documentary or oral, and as a result, a party lost the ability to meaningfully deal with the claim against it, then it would be contrary to the administration of justice to grant a stay. Indeed to deprive a litigant of his or her right to bring a claim in those circumstances would itself bring the administration of justice into disrepute.
In the present case, Trinity was first notified of the sexual abuse in 1997. That notification came from the police, not from representatives of the respondent. The claim at that stage was statute-barred. It does not seem to me that in those circumstances there was a need at that point to investigate the claim. Mr Dungan's approach to allow the police to investigate was justified.
The events in 2004 give rise to greater difficulty. As I have pointed out Hannigans made a claim on behalf of the respondent on 7 September 2004 and on 10 December 2004 indicated an intention to institute proceedings by 20 December 2004.
At that stage, although Mr Wilson-Hogg had died, the Reverend Sandars was still alive and presumably was able to make a statement. Further, having regard to the lapse of time between the events and the claim and no doubt the increasing age and failure of recollection of witnesses, it would normally have been appropriate to promptly investigate the matter.
However, Trinity through its solicitors denied liability, explained the reasons for that denial and asked on what basis the respondent's claim was not statute-barred by reason of the Limitation Act (see [11] above).
The position under the Limitation Act as it then stood was complex, the limitation period of 6 years prescribed by s 14(1) applied (neither s 18A nor s 50C applied having regard to the date of accrual of the cause of action). By December 2004 it would not have been possible to obtain an extension of the limitation period under s 58 of the Act as the ultimate bar in s 51(1) of 30 years would have applied. It should be noted that the solicitor's letters claimed that the assaults occurred whilst the respondent was in primary school, his last year in primary school being 1974.
However, an application for extension could have been made under s 60G. Although this section is expressed only to apply to a cause of action which accrues after 1 September 1990, clause 4 of Schedule 5 to the Act extends its operation to a cause of action which accrued prior to that date and empowered the Court to make an order under that section on an application made within the period of 3 years referred to in s 60I, or 3 years commencing on 1 September 1990.
Section 60G and s 60I were in the following terms: "60G Ordinary action (including surviving action) (1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897. (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines." "60I Matters to be considered by court (1) A court may not make an order under section 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii). (2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision."
There is no suggestion made by those advising the respondent at the time that the respondent had only become aware of the matters in s 60I within the 3 year period prior to the solicitor's letter. Indeed, the solicitors for the respondent did not reply to the letter from the solicitors for Trinity dated 16 December 2004.
In those circumstances, it was not unreasonable for Trinity to adopt the position that the claim was statute-barred and not investigate its underlying merits. Notwithstanding the threat to commence litigation by 20 December 2004, litigation was not commenced by that time or for that matter, in the ensuing years. Further, no attempt was made to rebut the contentions of Emil J Ford & Co Lawyers of 16 December 2004. In those circumstances, Trinity was entitled to proceed on the assumption that no claim was going to be brought against it by the respondent.
Nothing further was then heard from those acting for the respondent until 12 June 2014. By that time the Reverend Sandars had died. Mr West died before the institution of the proceedings. Although it is true that no statement was taken from Mr West by Trinity or its representatives between 12 June 2014 and 25 January 2016, a statement was taken from him by the police which gave his recollection both of Futcher and the camps.
Further, there is nothing to suggest that any further material would have been available in the period between 12 June 2014 and February 2016 when Mr Thompson was instructed and investigations commenced. It also must be remembered that until s 6A of the Limitation Act was passed, the same Limitation Act difficulties confronted the respondent. In all these circumstances, the difficulty in which Trinity finds itself in dealing with the proceedings was not due to its own neglect and default.

Conclusion

In these circumstances, Trinity is in a position where it is unable to deal meaningfully with the claim and a continuation of the proceedings would be unfairly oppressive and burdensome to it in the sense described in Basistatos and Moubarak. A permanent stay should be granted.
In the result, I would make the following orders: 1. Grant the applicant leave to appeal. 2. Order the applicant file a Notice of Appeal in the form of the proposed Further Amended Draft Notice of Appeal within 7 days. 3. Allow the appeal. 4. Set aside the orders of the primary judge. 5. Order the proceedings be permanently stayed. 6. Order that the respondent pay the applicant's costs of the appeal and the proceedings in the Court below and be entitled to an indemnity certificate under the Suitors Fund Act 1951 (NSW) if eligible.
PAYNE JA: I agree with Bathurst CJ.
SIMPSON AJA: I have read in draft the judgment of Bathurst CJ. I agree with the orders his Honour proposes and with his reasons therefor.

Schedule to Council of Trinity College (47.9 KB, pdf)

Endnote

Interim Committee for the Australian Schools Commission, Schools in Australia, Report (1973). 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: 09 December 2019

Suitors Fund Act 1951(NSW)

The Council of Trinity Grammar School v Anderson

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