Jurisdiction: Supreme Court of New South Wales (Common Law)
Date of Judgment: 10 June 2022
Bench: Garling J
The plaintiff, commenced proceedings against the defendant, on 26 July 2019, claiming damages for sexual abuse which he initially alleged occurred in 1966, and one occasion in 1967, while he was a student at St Joseph's School ("the School") in Lismore . The plaintiff pleaded that he was a day pupil at the School from 1966 to 1968 and that he was sexually abused by Brother Celcus during 1966 and 1967 . The pleaded abuse by Brother Celcus in 1966 was alleged to have occurred in the classroom during school hours while other students were also present, and outside of school hours but still in the classroom . The abuse pleaded in 1967 was alleged to have taken place on a single occasion at the Lismore Catholic Carnival, participation in which was alleged to a part of the School's activities .
The defendant accepted that they were the proper defendant to meet any claims against the then unincorporated association of the Marist Brothers, which conducted the School at the time of the alleged abuse. The Trustees filed a Defence on 17 October 2019.
The Plaintiff alleged two causes of action against the defendant:
- Negligence against the School for inadequate systems to address and manage the foreseeable risk of harm pleaded to exist with respect to the consequences of the sexual abuse of a student; and
- Vicarious liability of the School for the conduct of the alleged perpetrator, which is alleged to have occurred within the course of his employment at the School.
On 18 November 2020, the defendant filed a Notice of Motion, in which they sought the following relief:
- That the allegation raised by the plaintiff in his Statement of Claim of sexual abuse be permanently stayed pursuant to s 67 of the Civil Procedure Act; alternatively,
- That the allegation raised by the plaintiff in his Statement of Claim of sexual abuse be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005.
Garling J granted a permanent stay for the following reasons:
- The plaintiff's evidence, specifically his unassisted recollection or memory from when he was 11 years old was, because of the passage of time, likely to be impoverished 
- In the absence of any witnesses to the sexual assault relied upon by the plaintiff, and because Brother Celcus had passed away, the defendant was unable to test or challenge fundamental allegations of fact upon which the plaintiff's claim depended 
- The plaintiff relied on tendency evidence from witnesses who alleged inappropriate conduct between each of them and Brother Celcus, however such conduct was not witnessed by anyone. In consequence of Brother Celcus' death, the use of such tendency evidence would have magnified the prejudice to the defendant because the defendant was unable to investigate or challenge the tendency evidence 
- The defendant was unable to investigate or directly challenge the plaintiff's account of the abuse. The only possible witness to those facts was the alleged perpetrator who was dead, and he had no notice of the allegation prior to his death .
- There were no documents, which recorded any of the events of the school in 1966, including what the School's participation was at the Catholic Carnival, what role if any was delegated to Brother Celcus at that Carnival, what other teachers were in attendance and what were their roles with respect to the supervision of the plaintiff and other school students .
- Neither the headmaster nor any other Marist Brother on staff in 1966 was alive, which meant that the defendant could not investigate, deal meaningfully with, or confront the factual account of the abuse or the allegations about the role of Brother Celcus in the classroom .
- In meeting the claim of vicarious liability, the headmaster of the School was unavailable to inform the defendant of the role that was assigned to Brother Celcus in his capacity as a teacher of Year 6, whether he was one of a number of teachers, how the teaching day and class timetable was organised - a matter which could throw light on the role that Brother Celcus was given to perform - and what interactions or joint sessions occurred with other classes, if any. As a matter of practicality, there was simply nothing, and nobody, available to the defendant to rely upon or be informed by in making a challenge to the factual account of the plaintiff, nor to lead in evidence so as to address the claim that the school was vicariously liable for the criminal conducted alleged to have been carried out by Brother Celcus .
- The absence of relevant individuals and any document about the organisation of the School meant that the defendant was unable to meet the claim in negligence against it .
- There was a lengthy passage of time between the alleged abuse occurring and the claim being made. It was considered that the passage of time had led to the impoverishment of evidence, particularly oral evidence which was dependent upon a witness's memory or recollection -.
Fields v Trustees of the Marist Brothers  NSWSC 739 ('Fields'), reiterates the fundamental principle that a defendant must be able to test and challenge fundamental allegations of fact upon which the plaintiff's claim depends. Tendency evidence does not appear to take priority over the unavailability or death of witnesses, in particular the death of an alleged perpetrator because the defence retains the procedural right to test and challenge evidence and allegations of fact. There is still the question as to whether the death of an alleged offender, before any opportunity to put the allegations to them, in the absence of witnesses to the abuse, itself creates sufficient prejudice to prevent a fair trial.
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