An application by the Defendant to permanently stay proceedings was successful in this case where the alleged abuse occurred over 5 decades ago.
- The New South Wales Supreme Court, by a notice of motion, was asked to decide an application brought by the Defendant to permanently stay proceedings pursuant to s67 of the Civil Procedure Act 2005 (NSW) (the Act) which concerned a historical sexual abuse claim for damages.
The Plaintiff commenced proceedings in 2019 against the Defendant, Trustees of the Marist Brothers, claiming damages for sexual abuse which he alleged was perpetrated by his teacher, whilst he was a student at St Joseph’s School (the School) in Lismore in 1966 and 1967. The abuse by the relevant Brother was alleged to have occurred in the classroom during school hours whilst other students were present and also outside of class hours in the classroom. The abuse pleaded in 1967 was alleged to have taken place on a single occasion at Lismore Catholic Carnival.
Two causes of action were alleged against the Defendant; one in negligence for inadequate systems to address and manage foreseeable risk of harm and secondly the vicarious liability of the School for the conduct of the Brother who was alleged to have committed the abuse within the course of his employment.
The alleged perpetrator Brother passed away in 2000 and never formally responded to the allegations.
The plaintiff submitted two written statements in support of his case and evidence from 7 witnesses as tendency evidence. The statements from the witnesses described a number of occurrences between each of them and the relevant Brother which the Plaintiff sought to rely on to establish relevant ‘tendencies’ which were not witnessed by anyone.
The decision at trial
Despite a significant volume of tendency evidence, the court was unconvinced and held that “the use of such tendency evidence in these circumstances magnifies the prejudice to the defendant which arises from the death of [the relevant Brother] because the defendant is unable to investigate or challenge the principal evidence of the plaintiff or a significant circumstance relied upon in the plaintiff’s case, namely the relevant tendencies”.
The court emphasised that deciding the matter did not merely involve a consideration of the comparison between time lapses in different cases (55 years was considered to be “very lengthy”) but rather outlined six factors which were identified as particular features of the case which supported a stay being granted under section 67 of the Act:
- The defendant was unable to investigate or directly challenge the plaintiff’s account of the abuse as the only possible witness of facts was dead and had no notice of the allegations prior to his death. As well, there were no documents in existence which touched upon the factual account given by the plaintiff such as to allow his credit as a witness to be tested
- Secondly, there were no documents which recorded any of the events of the school in 1966, including the School’s participation in the Catholic Carnival and other factual matters relevant to the claim.
- Thirdly, neither the headmaster of the School nor any other Brother on staff in 1966 were alive which meant the Defendant was unable to investigate, deal meaningfully with, or confront the factual account of the Plaintiff of the abuse.
- Fourthly, in respect of vicarious liability, the headmaster of the school had died and was unable to inform the Defendant of the role that was assigned to the relevant Brother in his capacity as Year 6 teacher. There were no documents or witnesses available to the defendant to challenge the factual account of the plaintiff about the relationship between the school and the Brother, and this was especially important where those matters had been specifically pleaded in the claim.
- Fifthly, the absence of relevant individuals and any documents about the organisation of the School meant that the defendant was unable to meet the claim in negligence made against it. And because over 50 years had elapsed since the relevant events, and in the absence, of any expert reports on liability, it was not clear how there could be any evidence about the relevant standards of the time.
- Sixthly, 55 years or so had lapsed since the subject of the proceedings happened which was considered very lengthy period of time.
His Honour noted that a lengthy passage of time is a recognised cause of unfairness in a civil claim. At  his Honour held “such a statement in a case of this kind where the limitation period has been abolished by the Parliament does not involve any criticism of the plaintiff, nor is the plaintiff required to justify the lapse of time or explain his delay in commencing proceedings. However, in common law-based jurisdictions around the world, it is well recognised that such a lengthy passage of time may lead to the impoverishment of the evidence, particularly oral evidence which is dependent upon a witness's memory or recollection, and which is unassisted by any contemporaneous documents or other like evidentiary material.”
Despite noting at  that “it is not in the interests of justice, generally speaking, to prevent a plaintiff bringing a claim to hearing” ultimately the court held that in the absence of any witness to the sexual assault relied upon by the Plaintiff, and because the relevant Brother had passed, the Defendant was unable to test, or challenge in any meaningful way, the fundamental allegations of fact upon which the Plaintiff's claim depended. The court granted the relief sought and the proceedings were permanently stayed.
Implications for you
Each stay application is likely to involve a detailed consideration, by the Court, of the very specific facts at hand. However, this case demonstrates that the death of an alleged offender, particularly in conjunction with the unavailability of any other witnesses and documents, is of critical importance and the inability to attain a fair trial in those circumstances may not even be overcome by tendency evidence.