Stay of abuse claim refused

The NSW Supreme Court rejected an application for a permanent stay of historical abuse proceedings, finding that despite the death of the alleged perpetrator, a fair trial of the plaintiff’s action was possible.

In issue

• Whether the continuation of the proceedings would be oppressive or bring the administration of justice into disrepute.
• Whether to grant a permanent stay of proceedings claiming damages for institutional abuse

The background

In October 2020, Mark Peters (a pseudonym – ‘the plaintiff’) notified the Trustees of the Marist Brothers (‘the Marist Brothers’) of his intention to bring a civil claim for damages arising out of sexual abuse that he alleged was inflicted upon him whilst he was a student at Marist College, Kogarah in 1969-1970. At the relevant time, the alleged perpetrator was a teacher at the school. After the proceedings were commenced, the Marist Brothers did not speak with perpetrator or raise what was alleged in the claim against him, and it did not do so at any time before his death in custody on 12 September 2022, following his conviction for sexual offences.

The Marist Brothers filed a Notice of Motion seeking a permanent stay of the claim contending that the consequence of the death of the alleged perpetrator was that a fair trial of the plaintiff’s action would not be possible.

The decision at trial

The crux of the argument in support of a stay was that for a range of reasons, including the fact that the perpetrator died in 2022 and that the events giving rise to the claim occurred over 50 years ago, it would be manifestly unfair to allow the trial to proceed, and the proceedings should be permanently stayed.

The court specifically noted that the Marist Brothers were ‘on notice’ from a letter dated 23 October 2020 containing the plaintiff’s detailed allegations against the alleged perpetrator, and aware of the specific way in which the claim was put since at least 24 November 2021 (when the statement of claim was filed).The court observed that the Marist Brothers did not take steps to put the plaintiff’s allegations to the perpetrator or obtain instructions or an evidentiary statement from him up until that ‘opportunity’ was lost by reason of his death in September 2022.

The court rejected the Marist Brothers’ submission that they were not able to contact the alleged perpetrator following a letter from his lawyers in April 2015 which refused a request to meet to discuss another matter. The court rejected the argument that this letter signified that the perpetrator was forevermore unwilling to receive contact in connection with any allegations or claims made against him. In the court’s view, the context and timing of the Marist Brothers’ request to meet with the perpetrator was very important, because it was made after his conviction for historic child sex offences, but before he was sentenced. In any event, the April 2015 letter from his solicitor was not expressed in terms of him refusing, in all cases and in all situations and for all time, to speak to anyone in connection with any and all allegations made against him. In those circumstances, the court did not accept that the terms of the 2015 letter were such that it discharged the defendant from making any further attempts to contact the perpetrator, and to put the relevant allegations to him, and to attempt to secure his evidence. Another relevant matter was that following the initial convictions, the perpetrator pleaded guilty to all other charges brought against him in connection with him sexually abusing young boys. That he did so was, in the court’s view, highly suggestive that if he had been contacted again, he may well have agreed to discuss what was alleged by the plaintiff.

Given the perpetrator’s age, if it were discovered (or even believed) that he would not assist in meeting the Marist Brothers, their lawyers or investigators, to deal with what was alleged by the plaintiff, immediate steps should have been taken to ensure that his evidence was given – either by having the matter listed for an urgent hearing or for the taking of evidence on commission. The court expressly stated that a defendant should not have the benefit of its own inaction: the Marist Brothers’ alleged inability to meaningfully deal with the claim was a product of its own unreasonable failure to attempt to make contact with the perpetrator, and to take steps to secure his evidence.

The court was also of the view that the effluxion of time did not, of itself, justify the relief that the Marist Brothers sought, nor did considerations of presumed prejudice. The failure of the Marist Brothers to pursue – reasonably – means to secure the perpetrator’s version as to what was alleged or his evidence as to those matters, indicated that the effluxion of time, and any presumed prejudice, did not justify the grant of a stay.

The court was not persuaded that the Marist Brothers could not have a fair trial in connection with the plaintiff’s direct liability case. In connection with any claim for vicarious liability, no separate submissions were advanced beyond the death of the perpetrator and therefore there was justification for making the orders sought.

Implications for you

We think that the judgment demonstrates a strict approach with a somewhat harsh outcome for the Marist Brothers. A witness cannot be forced to assist or speak to a defendant and this case left the Marist Brothers in a difficult situation from an evidentiary perspective. However, it does demonstrate the very high threshold that has to be attained for a stay of proceedings to be ordered. A permanent stay will defeat a claim without a full consideration of its merits, so it stands to reason why it is only ordered by a court where it is satisfied that a fair trial is not possible.

Allegations of this nature should be investigated promptly and vigorously. If appropriate investigations are not undertaken, an institutional defendant risks being unable to secure a stay of proceedings and having to meet a case with little or no appropriate evidence. Matters such as the age, health and circumstances of the alleged perpetrator are highly significant, and must inform decisions about the appropriate investigation of a claim.