Limitation of Actions Act 1958, s 27P.

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857; Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407, applied; RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43; (2024) 98 ALJR 1453, referred to.

1. On 31 August 2020, Domenic Colbert[1] ('the plaintiff') commenced a proceeding against the Trustees of the Christian Brothers ('the defendant') in the Trial Division claiming damages for physical and sexual abuse. In the pleadings filed by him in the proceeding, the plaintiff claims to have been physically and sexually abused by Brother North and Brother Archer respectively during a two year period between 1952 and 1955 when he was a Year 7 and Year 8 student at St Paul's Technical College, Ballarat ('the College').
2. On 25 November 2022, the defendant filed a summons ('the summons') seeking an order that the proceeding be permanently stayed pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules') and/or the inherent jurisdiction of the Court. The summons was heard by O'Meara J, sitting in the Trial Division, on 22 May 2024. On 13 June 2024, his Honour dismissed the defendant's application for a permanent stay of the proceeding.[2]
3. The defendant now seeks leave to appeal (and, if leave is granted, to appeal) the judge's order refusing to stay the proceeding. Referring to the High Court's decision in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore,[3] the defendant relies on the following proposed ground of appeal:
   1. The primary judge erred by:

(a) misapplying GLJ by applying too narrow an interpretation of the test for determining whether or not exceptional circumstances exist which warrant the grant of a permanent stay (see Reasons at [79]-[81]); further and in the alternative

(b) failing to find that exceptional circumstances existed such as to warrant the grant of a permanent stay of the proceeding below and, when doing so, failing to distinguish the circumstances in the present case from those in GLJ (see Reasons at [88]-[104], [119], [127]-[130], [170]-[175]).

1. The plaintiff commenced the proceeding by writ and statement of claim filed on 31 August 2020. He filed an amended statement of claim on 20 December 2023, and a further amended statement of claim on 23 May 2024.[4]
2. On 8 December 2020, the defendant filed a defence to the plaintiff's original statement of claim. Having not pleaded to the plaintiff's amended statement of claim, that defence has been taken to be the defendant's defence to the amended statement of claim.[5]
3. The plaintiff has made discovery via an affidavit of documents sworn in August 2021. The defendant has made discovery via three affidavits of documents: the first sworn in June 2021; the second in March 2023; and the third in May 2024.[6]
4. In his affidavit of documents, the plaintiff discovered the formal court documents, letters and copy letters passing between the solicitors for the parties, and two medical reports.[7]
5. In its three affidavits of documents, apart from court documents and correspondence passing between the solicitors for the parties, the defendant discovered 168 documents (some of which were described as files) in its possession, custody or power. These included:
   • documents relating to the College;
   • documents relating to Brother North with dates ranging from 1940 to 1994;
   • documents relating to Brother Archer with dates ranging from 1939 to 1995;
   • Christian Brothers 'General Documents'; and
   • documents described as 'Pre-1955 complaint - Victim File 1' through to 'Pre-1955 complaint - Victim File 13'.
6. During the course of the proceeding, the plaintiff served two separate sets of interrogatories on the defendant for its examination: the first in September 2021; and the second in April 2023. The defendant provided answers to these interrogatories in February 2022 and June 2023 respectively. The answers were said to be founded on a review of the available documents and/or the deponent's 'understanding' or 'belief'.

1. In paragraph 1 of the amended statement of claim, the plaintiff pleaded that the defendant was a body corporate capable of being sued in its name as pleaded. In response, in paragraph 1 of the defence, the defendant pleaded:

(1) At all relevant times the Congregation of Christian Brothers was an unincorporated association and is an NGO within the meaning of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 ('the Legal Identity Act').

(2) Pursuant to the Legal Identity Act, the Congregation of the Christian Brothers nominated the Trustees of the Christian Brothers to defend the proceeding on its behalf and meet any liability as may be established by the plaintiff.

(3) The Trustees of the Christian Brothers have consented to the nomination as the proper defendant on behalf of the Congregation of the Christian Brothers within the meaning of s 7(1) of the Legal Identity Act as if it was responsible for the management and operation of the college at all relevant times.

1. In paragraphs 2 and 3 of the amended statement of claim, the plaintiff pleaded that between 1952 and 1955 there was a Provincial Leader and Provincial Council of the Christian Brothers (collectively, 'the Leadership') which, through the appointment and delegation of power to a principal and school council, managed and operated the College. In response, in paragraphs 2 and 3 of the defence, the defendant pleaded that there were certain 'Provincial[s]' of the relevant 'Congregation[s] of Christian Brothers'; and admitted that 'prior to and during 1952 to 1955, the then Provincial of the relevant Province of the Congregation of Christian Brothers operated [the College]'.
2. While the defendant asserted positively in its defence that at no relevant time was Brother North or Brother Archer employed by it, or its agent, or in a relationship which was equivalent to an employment relationship with the Congregation of the Christian Brothers and/or the then Provincial Leader and/or the defendant, in paragraphs 5 and 7 of the defence it admitted that:

(a) Brother Archer and Brother North were members of the Congregation of Christian Brothers;

(b) Brother Archer was appointed to the Ballarat community from 1950 to the end of 1960 and taught at the College as part of his service to the community; and

(c) Brother North was appointed to the Ballarat community from January 1951 to the end of 1956 and taught at the College as part of his service to the community.

1. In paragraph 6 of the amended statement of claim, the plaintiff pleaded that, during the relevant period, he attended the College. In response, in paragraph 6 of the defence, the defendant admitted that the plaintiff 'appears on the school register in 1955'.
2. In paragraph 8 of the amended statement of claim, the plaintiff pleaded that, during the period, while he was enrolled in Years 7 and 8 at the College, he was physically and sexually abused. The amended statement of claim contains the following particulars of that allegation:

(a) The plaintiff was sent to the administration office where he was sexually abused. The sexual abuse was committed by Brother North and Brother Archer.

(b) The plaintiff was physically abused for trivial or no reason.

(c) On one occasion after the Queen visited Ballarat and the students observed the royal parade, the Plaintiff was approached by North. He was instructed to return to the main office at the school. He was told to drop his strides and he was fondled by North. At the same time he was violently strapped.

(d) The Plaintiff was fondled on countless occasions by Archer or North. The abuse occurred on a weekly basis over 2 years. The abuse was always conducted in the context of being punished and sent to the office.

(e) On one occasion Brother North attempted to anally penetrate him with a finger.

(f) The plaintiff was the victim of excessive and unwarranted physical abuse. The Plaintiff regularly milked cows prior to going to school. He had split skin as a result of dipping them in acid. This was confused for dirt and he was belted with a leather strap until his hands bled.

1. In response, in paragraph 8 of the defence, the defendant pleaded that it 'does not admit the allegations contained in paragraph 8 [of the amended statement of claim]'.
2. In paragraph 9 of the amended statement of claim, the plaintiff pleaded that prior to him being abused, the Leadership had been told about complaints made against Christian Brothers of sexual abuse of children. In response, in paragraph 9 of the defence, the defendant pleaded:

It admits that as at 1952 the then Provincial of the Australian Province of the Congregation of Christian Brothers had over a number of years received reports from time to time relating to allegations of sexual abuse directed against Brothers who were members of the Congregation of Christian Brothers at various Christian Brothers institutions predominantly in Western Australia.

1. In paragraph 10 of the amended statement of claim, the plaintiff pleaded that the defendant knew or ought to have known about the abuse to which he had been subjected. In response, in paragraph 10 of the defence, the defendant denied those allegations.
2. In paragraph 11 of the amended statement of claim, the plaintiff pleaded that the abuse to which he was subjected was committed by Brother North and Brother Archer in the course of their 'employment or other engagement with the Leadership' and, as such, the defendant is vicariously liable for the abuse. While the allegation of vicarious liability was denied in paragraph 11 of the defence, in light of the subsequent decision of the High Court[8] in Bird v DP,[9] the plaintiff no longer pursues any claim against the defendant based on the principle of vicarious liability.
3. In paragraph 12 of the amended statement of claim, the plaintiff pleaded that the defendant, through the Leadership and the principal of the College, owed a duty to take such care of the plaintiff as a careful parent would take of his or her own child. In response, in paragraph 12 of the defence, the defendant admitted that the Congregation of the Christian Brothers owed the plaintiff a duty 'to exercise reasonable care to avoid exposing the plaintiff to a reasonably foreseeable risk of injury during the period that the plaintiff was a pupil at [the College]'; otherwise, the defendant did not admit the allegations in paragraph 12 of the amended statement of claim.
4. Finally (so far as the relevant paragraphs of the pleadings are concerned), in paragraph 14 of the amended statement of claim, the plaintiff pleaded that the abuse to which he was subjected was caused by the negligence of the Leadership and the principal, for which the defendant is liable. The gravamen of the plaintiff's particulars of negligence was that the Leadership and the principal were negligent because they failed to act on knowledge of widespread sexual abuse at institutions run by the Christian Brothers from as early as 1930, and failed to institute and enforce appropriate systems and policies (including 'any system of complaint') to deal with the risk of sexual abuse occurring within the College. In response, in paragraph 14 of the defence, the defendant denied those allegations.

1. In support of its application for a permanent stay, the defendant relied upon three affidavits sworn by its solicitor, Joshua Dale. Mr Dale's first affidavit was sworn by him in November 2022. His second and third affidavits were sworn in May 2024. Mr Dale deposed, amongst other matters, to searches and other steps undertaken with a view to locating relevant documents and witnesses.
2. In opposition to the summons, the plaintiff relied upon an affidavit he affirmed in September 2023; three affidavits of his solicitor, Angela Di Carluccio, affirmed in September 2023, April 2024 and May 2024; an affidavit affirmed by Ken Clarke in September 2023; an affidavit affirmed by Gregory Vaughan in September 2023; and an affidavit sworn by Patrick Harris in April 2024.
3. In relation to these last three witnesses (Mr Clarke, Mr Vaughan and Mr Harris), in short compass:

(1) Mr Clarke deposed to attending the College as a student between 1952 and 1954. He deposed, amongst other things, to acts of violence perpetrated by Brother North and Brother Archer on students of the College.

(2) Mr Vaughan, who passed away sometime prior to the hearing,[10] deposed to attending another school in Ballarat (St Mary's Technical School) as a student between 1966 and 1969. He deposed, amongst other things, to being the victim of physical and sexual abuse by Brother Archer who was then teaching at St Mary's.

(3) Mr Harris deposed to being a student at the College from 1951 to 1953. He deposed, amongst other things, to being physically abused by 'all of the Brothers', with Brother North being 'the worst'.

1. A significant number of documents were exhibited to the various affidavits relied upon by the parties. These included:

(a) two reports of Dr Justin Lewis,[11] a consultant psychiatrist, who examined the plaintiff for medico-legal purposes on 8 July 2020;

(b) a report of Associate Professor Peter Doherty,[12] a consultant psychiatrist, who examined the plaintiff on behalf of the defendant for medico-legal purposes on 8 September 2021; and

(c) a report of Dr Adel Farag,[13] whose clinic the plaintiff had been a patient of since August 1998.

1. Given the reliance the defendant placed on the report of Associate Professor Doherty at the hearing of the summons, it is appropriate to set out here some of the passages upon which the defendant relied. The judge summarised those passages as follows:

The defendant made much of that report in the course of argument in respect of the present application. In that connection -

(a) under a heading 'Unusual circumstances', Associate Professor Doherty recorded as follows -

There were some unusual circumstances. He [the plaintiff] had his daughter with him. He referred to notes, about events that happened, and what symptoms he might have, as his memory was impaired.

(b) later, Associate Professor Doherty stated -

He referred to or read his notes when asked about his history and his symptoms, there was significant vagueness and poor memory evident, worsening if he was anxious.

(c) in answer to [a] specific question, Associate Professor Doherty stated, among other things -

My assessment of the plaintiff is made more difficult because of his cognitive impairment, and he presented himself and was vague, used notes as memory aid such and [sic as] there appeared to be a significant cognitive decline evident.[14]

1. The judge commenced his reasons for judgment by describing the proceeding and its procedural history.[15] In the course of doing so, his Honour referred to the defendant's answers to interrogatories. The judge noted that:

(a) in answer to an interrogatory concerning whether reports or allegations had been received by the Provincial in respect of Christian Brothers as well as Brother Archer and Brother North, the deponent took a covering objection behind which he deposed that:

... to the best of my understanding, no allegations had been made against Brother North or Brother Archer prior to 1952 or at all during the period;[16]

(b) in answer to an interrogatory as to whether the Provincial or Christian Brothers implemented any policies to minimise the risk of sexual abuse of children, the deponent swore a detailed answer referring to a constitution and articles that set out the expectations of Christian Brothers and their dealings with students;[17]

(c) in answer to interrogatories directed to mechanisms of complaint and whether the defendant received any allegations of sexual or physical abuse by Brother Archer or Brother North, the deponent deposed to an understanding that there were no other complaints and no other civil claims had been received in relation to Brother North, but that:

One other complaint had been received in respect of Brother Archer. In or around October 2007, a formal complaint was made relating to allegations of sexual abuse between 1966 and 1967 while the complainant was at St Mary's Technical School.[18]

1. It transpired that the complainant in that case was Mr Vaughan, who had made a complaint to 'Towards Healing'.[19]
2. Next, the judge referred to the evidence and submissions made by the parties.[20] The judge summarised the defendant's submissions as follows:

Senior counsel for the defendant opened by emphasising that -

(a) the alleged abuse occurred '70 years ago';

(b) Br North died in 1960 and Br Archer died in 1997;

(c) there is no history of prior complaint in respect of Br North;

(d) there is one prior complaint in respect of Br Archer (by Mr Vaughan), but that was made in 2008 and did not relate to Br Archer's period of service at the College;

(e) in that context -

... we contend in the overall circumstances of this matter that there are indeed exceptional circumstances, and that this is not a case where it could be said, as is said in the plaintiff's submissions, that the decision in GLJ [GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore ('GLJ')] has somehow dramatically changed the law, because there are exceptional circumstances and the circumstances here are so clearly distinguishable, we say, from GLJ.

Senior counsel thereafter examined aspects of the reasoning of the majority of the High Court in GLJ, as well as the circumstances of the present case. In that connection, he submitted that -

(a) the present case involves 'much more than the mere passing of time';

(b) a short passage quoted by the majority in GLJ from the reasoning of McHugh J in Brisbane South Regional Health Authority v Taylor gives 'some clarity and light to what the Court is talking about in relation to the effluxion of time';

(c) in that regard, if 'there can't be a real understanding of the facts', or 'there is a practical impossibility of giving the defendants any real opportunity of participating in the hearing', that creates exceptional circumstances;

(d) there is a 'great' distinction between the circumstances in GLJ and those in the present case; in that, in the present instance, the defendant is 'utterly in the dark' and it 'isn't [so much] an impoverishment of evidence ... [but] ... in reality ... the elimination of evidence';

(e) in that regard, 'all potential witnesses' have died and there are limitations on the availability of documentary evidence such that 'oral evidence in this case is going to be of great importance';

(f) in that connection, the defendant does not 'know anything' about the Queen's visit to Ballarat, or the circumstances pertaining to the 'office' at the College, and is unable to get instructions; consequently, the defendant is unable to 'even cross examine them about the circumstances and the place of the abuse';

(g) Associate Professor Doherty has expressed the opinion that the plaintiff is affected by 'cognitive decline' and there is 'material contradiction' in aspects of the histories given by the plaintiff as well as his account of events;

(h) the complaint by Mr Vaughan concerns 'a different institution', the documentary evidence concerning Br North's application for dispensation is 'limited' and the affidavits of Mr Clarke and Mr Harris 'fundamentally' concern being 'strapped';

(i) more broadly, the defendant has undertaken reasonable searches and should not have to undertake every investigation 'no matter how remote the possibility that it will bear fruit';

(j) in other similar cases, a stay has been granted; and

(k) in light of all of the above-

... there is a real inability which is an exceptional circumstance in this particular case to obtain evidence that is fundamental to meeting the allegations, not only what Archer or North would have said, but fundamental to a proper understanding of the circumstances of the abuse: where, how and opportunity. They are very material factors which, because time has taken away all evidence capable of going to those points, we cannot meet.

So, as I said, Your Honour, we are in the dark, and that is not a confected statement. We respectfully submit there cannot be a fair trial. ... .[21]

1. The judge then summarised the plaintiff's submissions as follows:

By contrast, senior counsel for the plaintiff described the defendant's application as amounting to no more than -

... a discourse as to what are indeed the common and expected effects of the continuation of time in the absence of a time limit.

In that regard, senior counsel for the plaintiff referred to 'the inevitable fading of memories and loss of evidence, be it from death, illness, infirmity or the loss or destruction of documents'.

In that connection, senior counsel noted that the reasoning of the majority in GLJ has subsequently been considered and applied by the Victorian Court of Appeal in Weiden v YZ (A Pseudonym) ('Weiden') and the New South Wales Court of Appeal in CM v Trustees of the Roman Catholic Church for the Diocese of Armidale ('CM').[22]

1. Having summarised the submissions of the parties, the judge turned to the applicable legislation and relevant authorities. The judge set out relevant parts of ss 27P and 27R of the Limitation of Actions Act 1958, before turning to the High Court's decision in GLJ, this Court's decision in Weiden,[23] and the decision of the New South Wales Court of Appeal in CM v Trustees of the Roman Catholic Church for the Diocese of Armidale.[24] In discussing those authorities, his Honour set out a summary of propositions derived from GLJ by this Court in Weiden[25] as follows:
   • the party seeking a permanent stay bears the onus of establishing more than a mere risk that a trial may be unfair - that party must establish that the trial will be unfair or will involve such unfairness or oppression as to be an abuse of process;
   • it can no longer be maintained that the passing of time alone enlivens the inherent power or any statutory power of a court to prevent an abuse of its process;
   • the effect of the passing of time is to be evaluated on the basis that it will be neither uncommon nor unexpected for the circumstances that the limitation period sought to avoid to be encountered;
   • the common and expected effects of the effluxion of time are not sufficient to constitute the 'exceptional circumstances' which would justify a court granting a stay and refusing to exercise its jurisdiction; and
   • any inevitable impoverishment of the evidence which the passing of time occasions cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay.[26]
2. The judge commenced his detailed analysis of the issues by noting that the defendant had to establish that a trial of the proceeding would be unfair and so constitute an abuse of process.[27] The judge noted that, in that regard, as the majority in GLJ had observed, it is 'extreme' to deny a person the prima facie right to have their case heard and determined.[28] It followed that the defendant's onus was a 'heavy one', and that the power to stay a proceeding was exercisable only in 'an exceptional case'.[29]
3. In the course of his analysis, the judge accepted that:

(a) the plaintiff's memory is faded, affected by 'material contradiction' and even affected by 'cognitive decline' as opined by Associate Professor Doherty;

(b) many 'potential witnesses' identified by the defendant are dead or their whereabouts are unknown; including, Br North and Br Archer, the plaintiff's parents, the leadership of the Christian Brothers and various persons connected with the College and the Ballarat Community in 1952 to 1955 and the leadership of the Christian Brothers and various persons connected with St Mary's Technical School and the Geelong Community in 1967 and 1968; and

(c) 'various categories of relevant contemporaneous documents' are unavailable; including, the plaintiff's school reports, details relating to his education and activities at the school, school yearbooks, details of any role that Br Archer and/or Br North may have had in relation to the plaintiff and any documents relating to the College's participation in the Royal parade in 1954.[30]

1. The judge considered, however, that 'all of that is no more than death, illness, infirmity or the loss or destruction of documents as a consequence of the passing of decades'; and that it followed that none of it could constitute 'exceptional circumstances' such that the court could exercise its power to refuse jurisdiction to hear the case.[31]
2. The judge accepted that aspects of the circumstances of the present case were 'different to some of those considered in GLJ'. In particular, his Honour noted that there were: no records of any relevant allegations of misconduct against Brother North or Brother Archer prior to their deaths; no records of Brother North or Brother Archer being charged with, or convicted of, any criminal offence; and no records of Brother North or Brother Archer having ever responded to any such allegations.[32]
3. In addition, the judge noted, as was emphasised by the defendant in argument, that the defendant was not notified of any of the plaintiff's allegations prior to August 2020.[33] The judge went on to observe, however, that it did not follow that 'exceptional circumstances' should be taken to have been shown.[34] The judge said:

Further, while the fact that the plaintiff first made a complaint to the defendant in August 2020 might be thought to be of perhaps some weight in the present context; that fact is capable of assuming much greater significance in the context of any oral evidence given by the plaintiff, as well as with respect to whether a court should accept his 'uncontradicted' account.

In that regard, elements of the above link to what the majority in GLJ described as being the 'real issue'; namely, whether holding a trial and rendering a verdict would not now be congruent with the fundamental norms of the adversarial system of justice.

In that connection, the majority in GLJ noted that -

(a) the plaintiff must be able to identify the claim;

(b) the defendant 'must be able to consider and respond to the claim in some meaningful way'; and

(c) there are systemic features and techniques that can or may assist to facilitate the conduct of a trial congruent with the fundamental norms of the adversarial system - including that a court is not bound to accept uncontradicted evidence.

In the present instance, the plaintiff has been able to identify his claim with sufficient specificity. In particular, his pleading identifies-

(a) the names of the alleged perpetrators;

(b) the period involved;

(c) the locations, nature and regularity of the claimed abuse; and

(d) the specific occasion of the Queen's parade in Ballarat in 1954.[35]

1. The judge noted that, while at least some relevant documentation has been lost owing to the passage of time, the available documentary material nonetheless included at least:

(a) the Constitutions of the Congregation of Christian Brothers;

(b) the Congregation of the Christian Brothers Chapter Book 1947, Australasian Province;

(c) minutes of meeting of the Provincial Council, July 1954;

(d) 'visitation reports' relating to the College in the period 1952 to 1956;

(e) correspondence relating to the application by Br North for dispensation;

(f) some photographs, including of the exterior of the College, Br North and Br Archer and rooms or areas apparently inside the College building, including the Principal's office;

(g) the line from the school register which shows the plaintiff to have been a pupil at the College in 1955;

(h) at least parts of the personnel files of Br Archer and Br North; and

(i) photographs, news articles and other documents relating to the Royal parade in Ballarat in 1954.[36]

1. As to documents still in existence, the judge said that, 'at least some' of those documents 'seem to have allowed the defendant to prepare its defence'.[37] The judge noted he used the word 'some' when referring to these documents because the defendant's three affidavits of documents post-dated its defence.[38]
2. After dealing with the passages in the report of Associate Professor Doherty upon which the defendant relied, and features of the histories taken by Associate Professor Doherty and Dr Lewis which the defendant said were indicative of 'material contradiction' in the plaintiff's account of relevant events,[39] the judge considered that those matters 'suggest[ed] that there is a significant foundation upon which the plaintiff's account might be meaningfully challenged' at a trial.[40]
3. The judge noted that it was also the case that, in circumstances of the present kind, regard must be had to 'the features and techniques emphasised by the majority in GLJ'.[41] The judge said:

That is, in respect of such a claimant, particularly one affected by contradictory histories, cognitive decline and/or no relevant diagnosable psychiatric disorder, the trier of fact would plainly need to scrutinise his account with the very greatest of care. In that regard, it would be necessary to be mindful that -

(a) in considering whether the plaintiff has proved his case, the court must take account of, among other things, 'the gravity of the matters alleged';

(b) all evidence is to be weighed in accordance with the proof which it is the power of one side to have produced and in the power of the other side to have contradicted;

(c) human memory is fallible, and that fallibility increases with the passage of time;

(d) a court is not bound to accept uncontradicted evidence; and

(e) the plaintiff's evidence must give rise to a reasonable and definite inference and not mere conjecture.

It will be evident that much of the above stands firmly against the submission of the defendant that 'there is a real inability ... to obtain evidence that is fundamental to meeting the [plaintiff's] allegations'.[42]

1. At the conclusion of his analysis of the circumstances of the case, the judge summarised what he said appeared to be 'the situation'. In doing so, his Honour made the following observations and conclusions:

(a) GLJ has changed the applicable principles - as the majority stated, it is a 'new world';

(b) in that regard, as Leeming JA noted in CM, there will be trials that must now proceed which would once have been regarded as unfair;

(c) in the present instance, all or most of the features relied upon by the defendant amount to no more than the inevitable impoverishment of evidence occasioned by the passage of time - which the majority in GLJ stated cannot amount to 'exceptional circumstances';

(d) the 'real issue' is whether holding a trial and rendering a verdict would not be congruent with the fundamental norms of the adversarial system;

(e) in that regard, the plaintiff has identified his claim with sufficient specificity;

(f) a significant amount of relevant documentary material remains available;

(g) aspects of that material are able to be deployed in different ways, by both parties;

(h) if the opinions of Associate Professor Doherty are accepted, the plaintiff's claim may fail;

(i) it is possible that the alleged perpetrators would have been called to give evidence - if they were alive and if they denied the allegations made - but there are many reasons why such a witness might not be called to give evidence;

(j) it is possible, but not likely, that if the other more significant potential witnesses had been available they would not have been called by the defendant to give evidence;

(k) the defendant prepared an early defence and has sworn answers to interrogatories that are indicative of a substantive defensive case;

(l) when the defendant comes to plead to the plaintiff's further amended statement of claim, it may well also deny the plaintiff's allegations of abuse and injury in the nature of complex post-traumatic stress disorder;

(m) the plaintiff is vulnerable to challenge as an unreliable witness;

(n) for various reasons, the trier of fact would need to scrutinise the plaintiff's evidence with the very greatest of care as well as remaining mindful of the various features and techniques applicable to the adversarial system and emphasised by the majority in GLJ;

(o) there is no 'principle' that prevents the defendant from making enquiries of former students of the College, particularly concerning the arrangements relating to the Royal parade in Ballarat in 1954 as well as the location and features pertaining to the 'main office' at the College;

(p) if the defendant were to make such enquiries, such evidence could likely be obtained;

(q) it follows that the defendant is not irretrievably 'in the dark' about those issues, or likely to be unable to meet those allegations should it choose to obtain such evidence; and

(r) with respect to the potential 'tendency' evidence of Mr Vaughan, Mr Clarke and Mr Harris, the defendant has a series of points available to it that may ultimately see the proposed evidence not admitted or excluded.[43]

1. After making those observations and conclusions, the judge considered that in a contested trial, it could not be accepted that the defendant had no practical possibility of participating in the hearing. His Honour said that, to the contrary, the defendant has 'a range of meaningful points available to it' - points which could be 'enhanced if it were to take further steps to obtain relevant evidence that is likely to be available'.[44] The judge then concluded the Reasons by saying:

In that regard, albeit that a trial would obviously concern alleged events that took place a long time ago, and consequently many persons referred to in the course of the trial would inevitably be identified as having since died as well as other effects arising from the long passage of time, the positions of the respective parties, and the available and competing evidence and arguments, would still present and fall for determination much like many other personal injury trials in which it would never be suggested that a 'fair trial' was not being afforded to both parties.

In that sense, whatever might be said about cases in other contexts, the effect of delay upon the present case does not mean that a trial would be unfair or present as 'no more than an informal enactment of the process of hearing and determining the plaintiff's claim'. Indeed, for the reasons which I have sought to explain, there would be meaningful points available to the defendant as well as the prospect of a real contest in which it could not presently be said that either party would necessarily prevail.

It follows that even if weight is afforded to the defendant's various claims of 'prejudice' and the like arising from the death of potential witnesses, the loss of 'key' documents and so on, the answer to the 'real issue' identified by the majority in GLJ must, in this case, remain the same.

Consequently, I am not satisfied that the defendant has discharged its onus of establishing that the case is an 'exceptional' one in that a trial of the proceeding would not be consistent with the fundamental norms of the adversarial system.[45]

1. Before proceeding further, we should summarise in a little more detail the High Court's decision in GLJ.
2. In January 2020, GLJ commenced a proceeding against the Trustees of the Roman Catholic Church for the Diocese of Lismore ('the Diocese'), alleging that, in 1968 (when she was 14 years old), a Catholic priest (Father Anderson) sexually abused her. The Diocese sought a permanent stay of the proceeding. The trial judge dismissed the Diocese's application. On appeal by the Diocese, the New South Wales Court of Appeal allowed the appeal and stayed the proceeding.
3. On appeal by GLJ, the High Court[46] allowed the appeal and set aside the Court of Appeal's order staying the proceeding. In setting aside the Court of Appeal's order staying the proceeding, the majority (Kiefel CJ, Gageler and Jagot JJ) said:

(1) Section 6A of the Limitation Act 1969 (NSW) and its cognate provisions, which provide for no limitation period for claims for damages based on child abuse, involved a fundamental change to the legal context in which the power to stay such a proceeding is to be exercised.[47]

(2) The jurisdiction to order the permanent staying of a child abuse proceeding is to be exercised in the new context created by s 6A(1) and its cognate provisions. As former limitation periods had worked injustice to a vulnerable class of people (those claiming damages arising from child abuse), Parliament acted to ensure that people in that class may commence proceedings at any time. That fundamental change means that it can no longer be maintained that the mere passing of time alone enlivens the inherent power to prevent an abuse of process.[48]

(3) By removing the existing limitation period, Parliament presumptively removed any conception that a party is ordinarily expected not to sit on their rights and is taken to be responsible for any consequences adverse to their interests by doing so. Absent some disentitling circumstance, the 'mere fact of the passing of time is of no consequence'.[49]

(4) The effect of the passing of time is to be evaluated in this 'radically new context', in which Parliament has chosen to abolish any period of limitation. The effect of the passing of time is to be evaluated on the basis that it 'would be neither uncommon nor unexpected for the circumstances that the limitation period sought to avoid to be encountered'.[50]

(5) In the context of child abuse claims, Parliament has created the relevant framework of contemporary values. Parliament has accepted that, in the ordinary course, there is likely to be long delay in the bringing of such claims before the courts. The courts must now evaluate contentions of abuse of process within this new normative structure.[51]

(6) In criminal proceedings, there are a number of mechanisms by which a court addresses the issue of delay. There is no reason to assume that common law techniques, which are developed in such a case, are not equally capable of enabling a judge to do justice in a civil proceeding. Parliament has decided that the value the law ordinarily places on expeditious resolution of claims has to yield, because abuse often causes life-long harm of a kind which effectively disables a person from bringing a claim for years or decades.[52]

(7) The inevitable fading of memories and loss of evidence (whether it be from death, illness, infirmity or the loss or destruction of documents), in the context established by s 6A and its cognate provisions, are properly to be understood as routine and unexceptional sequelae in the harm caused by the alleged act, which is the subject of the claim.[53]

(8) In this class of cases, the inevitable impoverishment of the evidence arising from the passing of time cannot be characterised as involving exceptional circumstances. The requirement of exceptional circumstances involves a qualitative and not quantitative assessment, which must be undertaken in the context of the relevant statutory provisions.[54]

(9) The absence of a witness or witnesses who may be regarded by a party as important, whether through death, illness, loss of memory or inaccessibility, does not mean that a fair trial cannot be obtained. Nor does the loss or unavailability of other evidentiary material mean that a trial will be unfair.[55]

(10) There are a number of reasons why missing witnesses or evidence do not make a trial unfair: the adversarial system requires a plaintiff to prove their case; the more serious the facts sought to be proven, means that the degree of persuasion must be more stringent;[56] and a court is not bound to accept uncontradicted evidence.[57]

(11) There are likely to be differences between cases involving claims of child abuse arising from a private and domestic, as opposed to an institutional context. In an institutional context, the institution may have been on notice of other claims against the alleged perpetrator; an institutional context may be more likely to yield tendency evidence;[58] and in an institutional setting, there may be relevant documentary evidence.[59]

1. In the course of the Reasons, the judge referred to submissions made by the defendant about transcripts of the argument in 'two recent hearings in the High Court'.[60] On 13 November 2024, the High Court delivered judgment in those matters: Willmot v Queensland[61] and RC v The Salvation Army (Western Australia) Property Trust.[62]
2. In Willmot, Ms Willmot brought a proceeding against the State of Queensland seeking damages for sexual abuse and serious physical abuse she alleged that she had suffered more than 50 years earlier in four separate contexts while she was in State care. On the application of the State, the primary judge granted a permanent stay of the proceeding and, in a decision delivered before the High Court delivered GLJ, the Court of Appeal of the Supreme Court of Queensland dismissed Ms Willmot's appeal. On appeal to the High Court by Ms Willmot, the appeal was allowed and the stay order was set aside. In its place, the High Court ordered that two of the claims pleaded by Ms Willmot should be stayed,[63] but that the application for a permanent stay of the proceeding should otherwise be dismissed.
3. In RC, the plaintiff commenced a proceeding against the Salvation Army claiming damages for sexual abuse alleged to have occurred approximately 60 years earlier. On the application of the defendant, the primary judge granted a permanent stay of the proceeding and, again in a decision delivered before the High Court delivered GLJ, the Court of Appeal of the Supreme Court of Western Australia dismissed the plaintiff's appeal. On appeal to the High Court, the appeal was allowed; the stay order was set aside; and, in place of the original order, the Salvation Army's application for a permanent stay was dismissed.
4. In Willmot, the plurality[64] observed that, during the hearing of that appeal and the hearing of RC, 'it was apparent that different views had been taken of what was required by the application of the approach of the majority of this Court in GLJ for the operation of the stay principles in the context of' cases of this kind.[65] Their Honours went on to observe:

Indeed, during argument in both matters, it became evident that the meaning and effect of some of the language of the reasons of the majority in GLJ has been understood in different ways.[66]

1. Having observed that GLJ had been understood in different ways, the plurality then discussed GLJ[67] before stating the applicable principles as follows:

The position remains that a stay is a 'last resort' and requires an 'exceptional' case. An exceptional case will remain one in which it is impossible for the irreducible minimum necessary for a fair trial to be satisfied. The irreducible minimum required to enable a fair trial is not an absolute or immutable concept; it is a conclusion about the individual case that is reached having regard to the statutory context and to the specific circumstances of the case. Ms Willmot's contention that the Moubarak principles needed to be recalibrated, or alternatively, a principle 'added', to recognise that there has been a 'radical alteration of that which is extreme or exceptional, with respect to the evidentiary possibilities' must be rejected. The change, as explained, is that certain classes of claims made long after the events in question are prima facie permissible when they were previously prima facie prohibited and the principle of a right to a fair trial is to be applied in that new statutory context.

The question remains: would the trial of the pleaded allegations be necessarily unfair? Any consideration of an application for a stay in the context of s 11A (or its equivalents) is undertaken in a new world where it is to be expected, rather than unusual, for claims of child sexual abuse to be made where there may not be documentary evidence or direct corroborating evidence. Why? Leaving aside the nature of child sexual abuse as a largely hidden or secret crime, never before have cases of this age been able to be commenced and tried. The inevitable fading of memories and loss of evidence (whether it be from death, illness, infirmity, or the loss or destruction of documents), in the context established by s 11A, are properly to be understood as routine and expected. That statement describes characteristics common among this category of cases which is no longer statute barred.[68]

1. As to limited or unavailable evidence, their Honours said:

But limited or unavailable documentary or direct corroborating evidence of sexual abuse is not unique to cases concerning allegations of child sexual abuse that occurred long ago. As sexual abuse is typically perpetrated in secret, it is not uncommon that there will be no witnesses or documentary evidence in existence that would bear on the likelihood or otherwise of the alleged abuse. And, in any case, the removal of a time-bar in the case of such child sexual abuse claims by operation of s 11A does not foreclose a defendant obtaining a stay by reason of the impoverishment of evidence in such a case if such impoverishment, in the circumstances, would (not might) prevent a fair trial irrespective of the potential application of the range of principles and techniques of the common law. To hold to the contrary would depart from long-standing and established principles.

Further, limited evidence or unavailable evidence is not unique to cases where there has been a passage of time between the events alleged to give rise to the claims and the commencement of proceedings. As proceedings involving nominal defendants illustrate, it is not unusual for courts to deal with cases which might not involve delay but where the alleged defendant or perpetrator is missing and unidentified, dead or unknown. In those cases the courts have adopted a cautious approach, recognising it is 'necessary to establish as reasonably clear a case as the facts will admit of to guard against the danger of false claims being brought against a person who is dead, and thus is not able to come forward and give an account for himself'. A related principle of evidence law is that, while corroboration will always assist in such cases, there is no rule of law that there can be no claim without corroboration. Indeed, criminal courts hear cases every day in which one party makes allegations that the accused says it can do no more than deny. Longman v The Queen was such a case, and the Court's directions about the necessary warning to the jury both reinforce that care must be shown before accepting uncorroborated evidence and demonstrate that the courts have developed principles and techniques for dealing with contests of this kind. As the references in Longman to Jago v District Court (NSW) show, the required level of impairment is that the trial must be unfair even if the trial judge were to direct the jury with the Longman warnings.[69]

1. As to the context in which fairness is to be evaluated and the techniques available to trial judges to deal with evidentiary imbalances, the plurality said:

Fairness is to be evaluated in the context of principles and techniques available to trial judges to deal with evidentiary imbalances. Those principles and techniques have not changed because of the abolition of the limitation period or the decision in GLJ. What has changed is the legislative context, which carries the consequence that there are now likely to be more cases in which those principles and techniques will need to be deployed. For present purposes, it is sufficient to refer to five techniques. First, courts recognise that the degree of satisfaction required under the civil standard of proof may vary according to the gravity of the fact to be proved. Second, all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. Third, a court is not bound to accept uncontradicted evidence and the 'facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied'. Fourth, courts are mindful that ordinary human experience exposes that human memory is 'fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time'. And fifth, where a claim is based upon an interaction with a deceased person (or involving a deceased estate) the court will scrutinise the evidence very carefully.[70]

1. Finally, on the issue of the principles to be applied in an application for a permanent stay, their Honours said that the reason parties can lead evidence on an application for a stay is 'not to establish the truth or falsity of the claims made in the proceeding'. Rather, that evidence 'must be directed to whether the trial of the issues that have been joined in the proceeding will be unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process'.[71] Their Honours then said:

That is, the application for a permanent stay is not, and is not to be treated as, a trial of the issues joined between the parties. The application proceeds on the basis that the plaintiff is in a position to produce evidence to support the case pleaded and particularised. It falls to the party seeking to stay the proceedings ... to identify what it says would make the trial of each set of allegations raised by the other party [the plaintiff] unfair, including any unfairness arising from the nature of the evidence to be called.[72]

1. Under proposed ground 1(a), in its written case in this Court, the defendant submitted that the judge erred 'by adopting too narrow an interpretation of the test in GLJ' when he concluded that the 'death, illness, infirmity or the loss or destruction of documents' that had occurred in this case as a consequence of 'the passing of decades' did not constitute 'exceptional circumstances'.
2. In support of that submission, the defendant observed that, in GLJ, the High Court had referred to the decisions of Connellan v Murphy[73] and Moubarak by his tutor Coorey v Holt[74] as examples of cases where the effect of the passage of time may demonstrate that a fair trial is no longer possible. The defendant noted that, while both Connellan and Moubarak involved abuse in a domestic rather than institutional setting, nevertheless the majority in GLJ[75] emphasised that:

(a) it was not possible for the parties 'to investigate (or call evidence about) relevant surrounding circumstances and events' in Connellan, with it further noted that 'the vagueness of the plaintiff's own recollections makes the investigation and defence of her allegations even more problematic'; and

(b) the alleged perpetrator in Moubarak had dementia which rendered him incapable of providing any response to the plaintiff's allegations. Further, the dementia had arisen prior to the first notice of the plaintiff's claim.

1. The defendant submitted that none of the relevant distinguishing features between institutional and domestic cases of child abuse identified in GLJ applied to the facts in the present case. For example, there is no suggestion of earlier knowledge on the part of the defendant of other claims against the alleged perpetrators in this case; and no 'potential issue of tendency evidence' in GLJ.
2. The defendant submitted that GLJ did not stand for the proposition that impoverishment of evidence is no longer a relevant factor to be considered in an application for a permanent stay. It then submitted that, as a result of the judge's erroneous application of GLJ, the judge failed to have proper regard to:

(a) the effect of the combination of the deaths of the alleged perpetrators prior to the first notice of [the plaintiff's] allegations;

(b) the unavailability of the majority of any other key witnesses from [the College];

(c) the unreliability of [the plaintiff's] memories, including due to his cognitive difficulties; and

(d) the loss of numerous categories of documents.

1. The defendant submitted that the combination of these matters meant that 'the level of impoverishment of the evidence is to such an extent that [the defendant] is unable to meaningfully investigate and/or respond to [the plaintiff's] allegations'. As a result, the proceeding is an abuse of process and a stay is warranted pursuant to the principles set out in GLJ.
2. Under proposed ground 1(b), in its written case, the defendant submitted that, in finding that the various matters raised by the defendant in support of the stay application constituted 'no more than death, illness, infirmity or the loss or destruction of documents', the judge erred. The defendant submitted that, at the hearing of the summons, it did not solely rely on the impoverishment of evidence. Rather, it also relied on the evidence that there had never been an unrelated allegation of sexual assault made against Brother North, and there had only ever been one other allegation of sexual abuse against Brother Archer - this allegation involving conduct of a different nature which was alleged to have occurred a number of years later, and which itself was first raised after the death of key witnesses, including Brother Archer and a lay teacher who allegedly received a contemporaneous complaint about it.
3. The defendant submitted that the absence of any unrelated complaint against Brother North, and the existence of a single complaint against Brother Archer, distinguished the present case from the factual circumstances of GLJ and CM - both of which related to allegations involving alleged perpetrators who had been the subject of a number of unrelated complaints of abuse during their lifetimes.
4. The defendant submitted that the combination of the absence of any other complaints against Brother North, and a single unrelated complaint against Brother Archer, and the impoverishment of evidence in the case generally, rendered the defendant incapable of considering and responding to the plaintiff's claim in any meaningful way - 'particularly as to the foundational issues as to whether or not the alleged abuse occurred'. The defendant submitted that this prejudice could not be ameliorated 'to an adequate degree such as to render a fair trial'.
5. Next, the defendant submitted that the judge erred in concluding[76] that the defendant was unlikely to have called any witnesses, irrespective of their unavailability, and that it would have likely relied solely on documentary evidence in any event.
6. Similarly, the defendant submitted that there was no evidentiary basis for the judge to conclude[77] that there was 'at least a significant prospect' that the defendant would amend its defence to deny the plaintiff's allegations of abuse.
7. The defendant submitted that the evidence tendered during the hearing of the summons demonstrated that it had been 'deprived of an ability to undertake other crucial steps ordinarily afforded to a defendant as part of the adversarial system, such as taking instructions from key witnesses, presenting a counter-narrative and/or directly challenging [the] plaintiff's account under cross-examination'. Referring to the New South Wales Court of Appeal's decision in Newcastle City Council v Batistatos,[78] the defendant submitted that these disadvantages lead to the consequence that any hearing of the proceeding would be 'no more than a formal enactment of the process of hearing and determining the plaintiff's case'.
8. Accordingly, the defendant submitted, the judge erred in dismissing the stay application. Properly applying the principles in GLJ, the judge should have ordered a permanent stay of the proceeding.
9. In an alternative submission, not put to the judge at first instance, the defendant submitted that this Court should (if it does not stay the whole of the proceeding) stay those parts of the plaintiff's claim that relate to Brother North.
10. In its oral submissions, the defendant argued proposed grounds 1(a) and (b) together. In essence, the defendant submitted that the judge erred in not accepting that there were exceptional circumstances which required the proceeding to be stayed as an abuse of process. The defendant relied on the combined effect of the following six matters as giving rise to exceptional circumstances justifying a permanent stay of the proceeding:

(1) The deaths of Brother Archer and Brother North before the allegations were first raised, such that the defendant 'could never get their response adduced in evidence'. This was submitted to go to 'the main foundational fact' in the proceeding: namely, whether the alleged abuse in fact occurred.

(2) The plaintiff's cognitive difficulties as identified by Associate Professor Doherty. The defendant submitted that these cognitive difficulties would 'impede and materially affect' the defendant's ability to properly cross-examine and test the plaintiff's 'version'.

(3) The absence of any prior complaints of sexual abuse against Brother North and the fact that there was only one limited unrelated complaint in relation to Brother Archer - a complaint which was said to have its problems because Mr Vaughan has now passed away, as has the teacher to whom Mr Vaughan is said to have reported the matter (a Mrs Bearstow). The defendant submitted that the absence of prior complaints of sexual abuse, in an institutional setting, in proceedings of this kind is 'very rare'.

(4) The death 'of a majority of other witnesses from the Christian Brothers in terms of people who were placed at [the College] at the relevant time in positions of leadership'.

(5) The death of the plaintiff's parents. The defendant submitted that the plaintiff's parents were important because they are said to have been told about the abuse close to the time that it occurred.

(6) The loss of 'numerous categories of documents, including school records such as school reports, academic reports, class lists and records of lay staff employed at the relevant time'.

1. In his written case in this Court, the plaintiff submitted that leave to appeal should be refused because neither of the proposed grounds of appeal has any real prospect of success.
2. In relation to proposed ground 1(a), the plaintiff submitted that the judge's interpretation of the test in GLJ was 'entirely orthodox'. Moreover, his Honour undertook an extensive and thorough examination of all of the evidence and submissions, and correctly applied GLJ.
3. In relation to proposed ground 1(b), the plaintiff submitted that, contrary to the defendant's submission, the judge referred to and accepted the factual aspects of this case which were different from those in GLJ. Specifically, the judge noted the lack of records of any allegations of misconduct being put to Brother North or Brother Archer prior to their deaths.
4. The plaintiff submitted that the judge's conclusion that the defendant had failed to establish that the case was an exceptional one was not only open, it was plainly correct.
5. In relation to the defendant's new submission that, in the alternative, there should be a partial stay of the proceeding, the plaintiff submitted that the defendant had not advanced any argument in support of this outcome and, in any event, should not now be allowed to make the argument. If the defendant is permitted to make the argument, the defendant submitted that any application for a partial stay should fail for the same reasons that the defendant's primary application failed.
6. In oral argument, the plaintiff accepted that the defendant 'is disadvantaged as a result of the affliction of time in this case'. The plaintiff submitted, however, that the defendant was 'not without punches to throw'. We took that submission to be a reference to at least the submissions the defendant could make at a trial about the unreliability of any evidence given by the plaintiff having regard to his cognitive difficulties as described by Associate Professor Doherty.
7. Ultimately, the plaintiff submitted that, for the reasons given by the judge, the defendant was not entitled to a permanent stay of the proceeding or any part of it.

1. It must be acknowledged that if this case were to proceed to trial, it would concern circumstances and events that occurred more than 70 years ago. Nevertheless, as the cases to which we have referred make clear, the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. That is why only exceptional circumstances justify the use of the power of a court to permanently stay a proceeding. The question to be determined is: would (not might) the trial of the pleaded allegations be necessarily unfair?[79]
2. The defendant's submission that GLJ does not stand for the proposition that impoverishment of evidence is no longer a relevant factor to be considered in an application for a permanent stay of a proceeding involving child abuse is undoubtedly correct. If the impoverishment of evidence caused by the passing of time would (not might) prevent a fair trial irrespective of the potential application of the range of principles and techniques of the common law being available to a court, then principle dictates that such a proceeding be stayed.[80]
3. In submitting that there are exceptional circumstances justifying a stay of the proceeding, the defendant relied upon the following matters: first, the deaths of Brother North and Brother Archer before the plaintiff's allegations or any other allegations of wrongdoing could be put to them; secondly, the plaintiff's cognitive deficits as identified by Associate Professor Doherty; thirdly, the absence of any complaints made against Brother North or Brother Archer in their lifetime (noting that the complaint made against Brother Archer was made years after his death, in respect of a different incident alleged to have occurred at a different institution and in respect of which a critical witness had passed away); fourthly, the passing away of numerous other potential witnesses; fifthly, the deaths of the plaintiff's parents (to whom the plaintiff says that he made relevant complaints while he was still at the college); and sixthly, the loss of numerous categories of documents, including school records, academic reports, class lists and staff lists.
4. In making these submissions, the defendant placed great weight on the lack of any unrelated complaints to it (or any other relevant body) concerning the conduct of Brother North, and the fact that there was only one other unrelated complaint in respect of Brother Archer. This was to be contrasted with the facts of GLJ, where the Diocese was aware, before Father Anderson allegedly abused GLJ, of multiple complaints having been made about Father Anderson's conduct in relation to young boys.[81]
5. Although the death of potential witnesses is now to be regarded as routine and unexceptional in cases of this kind, the passing away of Brother North and Brother Archer years before the proceeding was commenced is undoubtedly a significant matter so far as the fairness of any trial is concerned. To the extent that the judge concluded that, had they been alive, it is likely the defendant would not have called them as witnesses in the proceeding,[82] we respectfully disagree. Given the lack of any unrelated complaints against Brother North and the paucity of complaints against Brother Archer, it is more likely that, if they were alive and available, the defendant would have chosen to call them as witnesses. That is particularly so because, if they were not called as witnesses, the principle in Jones v Dunkel[83] would have applied. Having regard to the lack or paucity of unrelated complaints against Brother North and Brother Archer respectively, this case is to be contrasted with the forensic decisions that faced the Diocese in GLJ.[84]
6. That said, the question of whether or not the defendant would have called Brother North and/or Brother Archer if they were available is not determinative of whether the proceeding should be stayed. It needs to be born steadily in mind that, as we have already said, the question to be determined is: would the trial of the pleaded allegations be necessarily unfair? Moreover, that question falls to be resolved on the basis that the inevitable fading of memories and loss of evidence (whether it be from death, illness, infirmity or the loss of or destruction of documents), in the context established by s 27P(1) of the Limitation of Actions Act 1958,[85] are properly to be understood as routine and unexceptional sequelae of the harm caused by the alleged acts which are the subject of the proceeding.
7. The plaintiff's claim that he was physically and sexually abused by Brother North and Brother Archer is heavily dependent upon the evidence of the plaintiff. As matters currently stand, there is no other evidence which either party is able to call on that issue. The defendant's defence of this issue is plainly hampered by the fact that Brother North and Brother Archer died many years ago. That said, the plaintiff's case on this issue is capable of being defended by the defendant.
8. Specifically, the plaintiff's cognitive deficits as described by Associate Professor Doherty and inconsistencies in his accounts are matters capable of being exploited by the defendant in the defence of the plaintiff's claims that he was physically and sexually abused all those years ago. Moreover, the principles and techniques available to the trial judge to deal with the evidentiary imbalance in this case have considerable significance. At the risk of repetition, as was said by the plurality in Willmot:

First, courts recognise that the degree of satisfaction required under the civil standard of proof may vary according to the gravity of the fact to be proved. Second, all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. Third, a court is not bound to accept uncontradicted evidence and the 'facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied'. Fourth, courts are mindful that ordinary human experience exposes that human memory is 'fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time'. And fifth, where a claim is based upon an interaction with a deceased person (or involving a deceased estate) the court will scrutinise the evidence very carefully.[86]

1. Assisted by the evidence of Associate Professor Doherty, these principles and techniques will enable the defendant to mount a real defence to the plaintiff's allegations of physical and sexual abuse. Substantial arguments will be able to be put that, in all of the circumstances of this case, the trial judge, applying the principles stated in Briginshaw v Briginshaw,[87] should not be satisfied that the abuse the plaintiff claims to have suffered has been proven. While the defendant might be unable to establish an alternative narrative as a probability, it is to be remembered that it will succeed at trial if it persuades the trial judge that in all the circumstances the judge should not be satisfied on the balance of probabilities that the alleged abuse occurred.
2. It follows that, contrary to the defendant's submissions, the plaintiff's cognitive difficulties are not matters telling in favour of a permanent stay. They are matters capable of being taken advantage of by the defendant in order to show that on the whole of the evidence (impoverished by the death of witnesses and the loss of documents caused by the passing of time) the trier of fact (in this case a judge) could not be satisfied to the requisite standard that the abuse in fact occurred.[88]
3. In oral argument, the defendant submitted that the plaintiff might be able to tender at trial a coherent account given by him as recorded in a document - for example, the history the plaintiff gave to Dr Lewis as recorded by Dr Lewis following his examination of the plaintiff on 8 July 2020. It was submitted that if that report were to be tendered as part of Dr Lewis's evidence, the plaintiff's hearsay statements in it would be in evidence as proof of the truth of them pursuant to s 60 of the Evidence Act. That contention, however, overlooks the powerful submissions the defendant could make to the trial judge that, pursuant to s 136 of the Evidence Act, the court should limit the use to be made of such evidence so that a report such as Dr Lewis's does not become proof of the truth of any history in it which is said to have been given by the plaintiff.
4. Remembering that the question is whether the trial of the pleaded allegations will be necessarily unfair, it is also relevant to note that in order to succeed in this proceeding (which is a claim in negligence, and no longer one based on vicarious liability), the plaintiff must establish more than that he was physically and/or sexually abused. He must also establish negligence. On that issue, the defendant is undoubtedly well placed to defend the plaintiff's allegations. Specifically, there is no evidence of any complaint having been made to any relevant person about Brother North or Brother Archer at any time before the plaintiff was allegedly abused. Additionally, as was observed by the judge, the defendant has available to it a substantial number of documents that would be relevant to, and assist in, the defence of allegations made against it in relation to the policies and procedures in place at the College during the relevant period.
5. As the plurality stated in Willmot, a permanent stay is a 'last resort' and requires an 'exceptional' case. An exceptional case will be one in which it is impossible for the irreducible minimum necessary for a fair trial to be satisfied.[89] Taking into account the evidence that is likely to be available in a trial of this proceeding, and having considered the total effect of the matters relied upon by the defendant in its submissions that a fair trial is not possible, the judge was correct to conclude that the defendant is sufficiently well placed to defend the plaintiff's claim such that the proceeding is not an abuse of process and therefore should not be permanently stayed. Notwithstanding the deficits in the evidence as identified by the defendant, on the material that is available to the defendant, it will be able to mount an appropriate defence of the plaintiff's claim at trial - again remembering that the defendant does not have to prove any positive defence or version to successfully resist the plaintiff's claim.
6. In short, the present case is not an 'exceptional' case and the judge did not misapply GLJ. The impoverishment of evidence in this case has not been shown by the defendant to be anything other than the routine and unexceptional sequelae[90] of the passing of time for a claim which is not the subject of any statutory time bar. In the circumstances, it would be wrong for a court to refuse to exercise its jurisdiction to hear and decide the proceeding.[91]
7. For the same reasons, there is no basis for granting the alternative relief sought by the defendant: namely, a permanent stay of those parts of the plaintiff's claim that relate to Brother North. The defendant is as well placed to defend those parts of the claim as it is the parts that relate to Brother Archer.

1. While we will grant the defendant leave to appeal, for the reasons given above, the appeal must be dismissed.

[2] Colbert (a pseudonym) v Trustees of the Christian Brothers [2024] VSC 309 ('Reasons').

[3] (2023) 97 ALJR 857; [2023] HCA 32 ('GLJ').

[4] The operative pleading at the time of the hearing of the summons was the amended statement of claim. This is the version of the pleading referred to by the judge in the Reasons: see Reasons, [1]. For convenience, we will refer to it in these reasons, for present purposes, as relevantly identical to the further amended statement of claim which was filed after the hearing.

[6] The last affidavit having been provided approximately a fortnight before the hearing of the summons.

[7] One from Dr Justin Lewis dated 11 July 2020 and one from Dr Adel Farag dated 18 March 2021.

[9] [2024] HCA 41; (2024) 98 ALJR 1349 ('Bird').

[11] Dated 11 July 2020 and 18 March 2022.

[14] Reasons, [121] (footnotes omitted).

[21] Ibid [27] and [28] (footnotes omitted).

[22] Ibid [29]-[31] (footnotes omitted).

[23] Weiden v YZ [2023] VSCA 294 (Beach, Macaulay and Lyons JJA) ('Weiden').

[24] [2023] NSWCA 313 (Leeming and Payne JJA, Harrison CJ at CL) ('CM').

[25] Weiden [2023] VSCA 294, [66].

[29] Ibid. See GLJ [2023] HCA 32; (2023) 97 ALJR 857, 867 [21].

[30] Reasons, [80] (footnote omitted).

[42] Ibid [129]-[130]. See also Reasons, [131]-[141].

[43] Ibid [170]. See also Reasons, [77]-[169] for the detail of his Honour's analysis leading to these observations and conclusions.

[45] Ibid [172]-[175] (footnote omitted).

[46] Kiefel CJ, Gageler and Jagot JJ; Steward and Gleeson JJ dissenting.

[47] GLJ [2023] HCA 32; (2023) 97 ALJR 857, 870 [34].

[61] (2024) 98 ALJR 1407; [2024] HCA 42; (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) ('Willmott')

[62] (2024) 98 ALJR 1453; [2024] HCA 43 (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) ('RC').

[63] These were a claim of physical abuse (referred to as the 'Demlins physical abuse allegations') and a claim relating to an allegation of a specific instance of sexual abuse (referred to as the 'Pickering allegation'): see Willmot [2024] HCA 42; (2024) 98 ALJR 1407, 1426 [61] and 1429-30 [82]-[84].

[64] Gageler CJ, Gordon, Jagot and Beech-Jones JJ.

[65] Willmot [2024] HCA 42; (2024) 98 ALJR 1407, 1417 [18] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ).

[68] Ibid 1418-19 [26]-[27] (footnotes omitted).

[69] Ibid 1419-20 [28]-[29] (footnotes omitted).

[70] Ibid 1420 [30] (footnotes omitted).

[72] Ibid 1421 [32] (footnote omitted).

[73] [2017] VSCA 116 ('Connellan').

[74] [2019] NSWCA 102; (2019) 100 NSWLR 218 ('Moubarak').

[75] GLJ [2023] HCA 32; (2023) 97 ALJR 857, 876-7 [65]. See also 871 [43].

[78] [2005] NSWCA 20, [80].

[79] GLJ [2023] HCA 32; (2023) 97 ALJR 857, 862-3 [3] (Kiefel CJ, Gageler and Jagot JJ); Willmot [2024] HCA 42; (2024) 98 ALJR 1407, 1419 [27]-[28] (Gageler CJ, Gordon, Jagot, Beech-Jones JJ).

[80] Willmot [2024] HCA 42; (2024) 98 ALJR 1407, 1419 [28].

[81] GLJ [2023] HCA 32; (2023) 97 ALJR 857, 877-8 [67]-[70].

[83] [1959] HCA 8; (1959) 101 CLR 298, 308, 312, 321.

[84] GLJ [2023] HCA 32; (2023) 97 ALJR 857, 879 [76].

[85] The equivalent of s 6A of the Limitation Act 1969 (NSW), which removes the time bar for proceedings relating to child abuse.

[86] Willmot [2024] HCA 42; (2024) 98 ALJR 1407, 1420 [30] (footnotes omitted).

[87] [1938] HCA 34; (1938) 60 CLR 336, 343-4, 354, 362-3.

[88] Ibid. See also s 140(2) of the Evidence Act 2008.

[89] Willmot [2024] HCA 42; (2024) 98 ALJR 1407, 1418-19 [26].

[90] GLJ [2023] HCA 32; (2023) 97 ALJR 857, 873 [50].