S1 v The Trustees of Marist Brothers

1. [1]

   HER HONOUR: This case concerns whether parts of an amended statement of claim should be struck out. The plaintiff seeks damages for alleged sexual assaults by a teacher while a student. By notice of motion filed 2 February 2016, the defendants seek firstly, an order that the plaintiff’s statement of claim filed 15 September 2015 be struck out pursuant to r 14.28(1)(b) and (c) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); and secondly, further or in the alternative, that the plaintiff’s claim for exemplary damages be excluded pursuant to UCPR 6.22(a) and 6.22(b).

2. [2]

   The plaintiff is S1. The first defendant is the Trustees of the Marist Brothers. The second defendant is Kieran Geaney. The third defendant is John Thompson as executor of the estate of the late Alman Dwyer. The fourth defendant is Jeffrey Crowe as executor of the estate of the late Robert Goodwin. The fifth defendant is Ronald Perry. The sixth defendant is Alexis Turton. The seventh defendant is Geoffrey Joy. The eighth defendant is Christopher Wade. The ninth defendant is Ernest Houston. The tenth defendant is Kelvin Canavan. The eleventh defendant is Mark Gillogly. The twelfth defendant is Marshal McMahon. The thirteenth defendant is Terence Heinrich. The fourteenth defendant is Salvius Glass.

3. [3]

   The second defendant is the Provincial of the Marist Brothers. The third to thirteenth defendants were members of the Provincial Council of the Marist Bothers (“the Trustees”). The fourteenth defendant was a member of the Marist Brothers and the Principal of the Marist Brothers College, Penshurst.

4. [4]

   The defendants relied on the affidavit of Adam Stevens filed 18 March 2016. The plaintiff did not rely on any affidavit evidence.

The requirements of pleadings generally

1. [5]

   The plaintiff relies upon UCPR 14.28(1)(b) and (c). They read:

2. [6]

   UCPR 14.28(2) provides that the court may receive evidence on the hearing of an application for an order under subrule (1).

3. [7]

   In McGuirk v The University of New South Wales [2009] NSWSC 1424 (“McGuirk”) at [21] to [35], Johnson J set out the function of pleadings. I will only reproduce [30] to [35] of McGuirk as they are relevant here.

4. [8]

   In Williams v Spautz [1992] HCA 34; 174 CLR 509 at 526-527, the High Court held that proceedings may be stayed as an abuse of process:

5. [9]

   It is well established that a party alleging that proceedings are an abuse of process bears a heavy onus: see Ballina Shire Council v Ringland [1999] NSWSC 11, Hidden J at [47].

6. [10]

   Overall, the function of pleadings is to state, with sufficient clarity, the case that has to be met by the defendants. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that is, a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA, En Liquidation v Akhil Holdings Limited [1990] HCA 11; 179 CLR 279 at 286-287 and 302-303.

7. [11]

   At the hearing of this motion, the plaintiff sought to rely upon an amended statement of claim. As the plaintiff’s case should be taken at its highest, the argument proceeded upon the pleadings as set out in the proposed amended statement of claim (“PASC”) (Ex A).

8. [12]

   The defendant does not seek to strike out the whole of the pleadings in the PASC. At the hearing the parties agreed to some further amendments. What now remains in dispute are paragraphs [2], [9], [10], [11], [12], [13A], [18](j) to (t). After the defendant’s submissions were made in relation to paragraph [23], which involves a claim for exemplary damages, the plaintiff agreed to redraft it.

The pleadings in the PASC

1. [13]

   From 1980 to 1982, the plaintiff attended Marist College, Penshurst (“the school”) (PASC [13]). At all material times, Greg Hammond (“the teacher”) taught at the school. The plaintiff alleges that between 1980 and 1982, while a student at the school, he was sexually abused by the teacher (PASC [15]). As a result of the abuse, the plaintiff alleges that he suffered psychiatric injury and psychological sequelae (PASC [16]). The plaintiff seeks damages, including exemplary damages, interest and costs (PASC [23]).

2. [14]

   In essence, the defendants do not dispute, firstly, that the plaintiff is entitled to seek damages for the alleged sexual assaults on the basis that the defendants owed the plaintiff a non delegable duty of care to exercise reasonable care for the safety of the plaintiff including to protect him from sexual assault by those who taught at the school; and secondly, that the plaintiff is entitled to claim that injury and harm to the plaintiff were caused by breaches of duty of care owed by the defendants (PASC [17] and [18]). Particulars of the breaches of duty of care have been pleaded. It is also claimed that the defendants were vicariously liable for the acts of the teacher in assaulting the plaintiff and the injury and harm suffered by the plaintiff (PASC [19]).

3. [15]

   In order to develop his argument in relation to the disputed paragraphs in the PASC, senior counsel for the plaintiff referred to Ramsay v Larsen [1964] HCA 40; 111 CLR 16 (“Ramsay”); Commonwealth v Introvigne [1982] HCA 40; 150 CLR 258 (“Introvigne”); and Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 (“Dederer”).

4. [16]

   In Ramsay, the High Court per McTiernan J, quoting from the judgment of Lord Esher in Williams v Eady (1893) 10 TLR 41 at 42, stated (at 21):

5. [17]

   In Introvigne, the High Court stated (at 269 and 271):

6. [18]

   In Dederer, the High Court (per Gummow J) set out the settled legal principles in relation to negligence. They are as follows (at [18]):

7. [19]

   The provisions of the Civil Liability Act 2002 (NSW) are also relevant, in particular ss 5B and 5C.

8. [20]

   I shall now deal with the paragraphs of the PASC that are in dispute.

Paragraphs [2] and [9]

1. [21]

   Paragraph [2] pleads that between 1960 and 1982, the first defendant by its members, servants and/or agents operated and had the care, management and control of a network of Marist Brothers schools throughout Australia (“Marist Brothers schools”) and names 30 Marist Brothers schools, 11 of which are also mentioned in paragraph [9] of the PASC.

2. [22]

   I shall set out paragraph [9] of the PASC in full as this pleading is similar and relevant to some of the remaining paragraphs in dispute.

3. [23]

   Paragraph [9] pleads:

4. [24]

   This paragraph alleges that the defendants either knew or ought to have known of these incidents of sexual abuse that span from 1960 to 1980, the latter being the same year that the plaintiff started at the school. In other words, paragraph [9] sets out what occurred at other Marist Brothers schools across Australia by teachers and/or priests over a period of 20 years from 1960 to 1980.

Paragraph [10]

1. [25]

   Paragraph [10] relevantly pleads that:

2. [26]

   Paragraph [10] links the defendants to the alleged actual or constructive knowledge of the alleged incidents of sexual abuse set out in paragraph [9] and pleads that they failed to take any reasonable action in response.

3. [27]

   Senior counsel for the defendants submitted that, firstly, paragraph [9] particularises an array of conduct that is alleged to have taken place prior to the plaintiff’s alleged abuse, but there is no allegation as to how that conduct gives rise to a cause of action in the case as pleaded in paragraphs [13] to [18]; secondly, there is no allegation or particularisation of knowledge or its form in respect of each defendant; the mere recitation of a series of events is not and cannot be a proper particular and contravenes UCPR 15.4; thirdly, the vast array of allegations contained in particulars (a) to (bb) serve only to obfuscate the currently pleaded proceedings and introduce an irrelevance to it thus the pleading is both embarrassing and an abuse of the processes of the court; fourthly, the required proof and investigation of matters across decades concerning multiple incidents and requires a very large number of witnesses and has an obvious prospect of producing delay; and finally, this pleading has no relevance to the plaintiff’s causes of action against this particular school in relation to a particular perpetrator (T16.38-42).

4. [28]

   So far as paragraph [10] is concerned, the defendants submitted that the pleading hangs in the air and is unrelated to any alleged material fact giving rise to duty, breach or damage. There is no identification of which act in paragraphs [10](a) to (h) was unreasonably taken or not taken by which defendant. The defendants assert that this paragraph seeks to import into it 28 occasions criticised in paragraph [9] but by doing so seeks to attach 8 criticisms to each of the 28 occasions, but without proper identification of which criticism relates to each occasion and how that criticism arose in relation to any particular action of each defendant. The defendants say that paragraph [10] is impossibly vague and broad and ought to be struck out.

5. [29]

   For these reasons the defendants submitted that the pleadings in [2], [9] and [10] are embarrassing and an abuse of process, therefore they should be struck out.

6. [30]

   Overall senior counsel for the defendants submitted that paragraphs [2], [9] and [10] amount to the plaintiff conducting a Royal Commission into Marist Brothers schools via senior counsel for the plaintiff prosecuting what should be confined to a material facts case of asserted sexual abuse by a teacher at the school on the part of the defendants (T19.23-27).

7. [31]

   The plaintiff submitted that while it would be highly relevant to be able to prove that the teacher was known to the defendants as a child sexual predator that is not where the reasonableness ends. According to the plaintiff, for many, many years, people who ran schools pleaded ignorance to the existence of child sexual abuse. Senior counsel for the plaintiff also submitted that in this case, the purpose of the pleadings is to allege that “the phenomenon” of child sex abuse was not “a phenomenon” about which information first emerged when the teacher abused the plaintiff and without this background it may be difficult to allege that a school should protect children against a phenomenon that nobody could possibly know about. He submitted that the decades of litigation in relation to dust diseases are closely analogous with these cases because both are system cases (T28.40-50; T29.1-3).

8. [32]

   While senior counsel for the plaintiff says he is not alleging that the defendants had a tendency to abuse children, he is alleging that there was so much knowledge vested in the first defendant, as a body corporate, which can only act through its servants and agents, that is, through the Trustees, that they should have been doing something about it and those facts, the plaintiff says, are the particulars of negligence. According to the plaintiff, that puts the framework around why the plaintiff makes the allegations concerning prior knowledge and gives particulars of negligence at paragraph [9] (T29.47-50; T30.1-10).

9. [33]

   The plaintiff further submitted that the fact that they can only now identify childhood sexual abuse in schools run by the defendants between 1960 and 1982, in 11 of the 32 schools, makes those 11 clearly relevant.

10. [34]

    What paragraph [9] is asserting is that from 1960 to 1982 all of these alleged sexual assaults were known or should have been known by the first defendant through the 13 named Trustees. There is no dispute that the duty that the defendants owed to the plaintiff was to take reasonable care to prevent him being sexually abused during the period he attended the school, namely between 1980 and 1982.

11. [35]

    The particulars of breach of duty of care in paragraph [9] extend beyond the duty to protect the student from being sexually abused by the teacher. They are that the first defendant failed to institute and maintain a system of mandatory reporting of known or suspected cases of sexual assaults upon children of the school to external authorities ([18](e)); and failed to institute and maintain a program to educate children of the school in relation to their right to be free from sexual abuse at the school and to report any sexual abuse to an appropriate designated person or persons or alternatively to his parents or to the police ([18](f)). These particulars are not the subject of objection.

12. [36]

    I accept that if the school principal (the fourteenth defendant), the trustees or other teachers of the school were aware of prior sexual abuse at the school, particularly by the teacher in the period of shortly before 1980 and up to 1982 (when the plaintiff left the school), those particulars would be relevant to the scope of the duty of care. Sexual abuse of a pupil at another school from 1960 onwards and after the period when the plaintiff was allegedly sexually abused does not inform the scope of the duty of care owed to the student who attended the school from 1980 to 1982. Hence, paragraphs [2], [9] and [10] are far too wide and are embarrassing. They should be struck out.

Paragraph [11]

1. [37]

   For the reasons given earlier, it is my view that the behaviour of teachers or priests at other Marist Brothers schools across Australia, both before and after the plaintiff’s attendance at the school, do not fall within the scope of the duty of care. There is, however, an exception contained in paragraph [11](b) that pleads:

2. [38]

   This occurred while the plaintiff was at the school and is relevant to the case in dispute. Aside from [11](b) the balance of paragraph [11] in its current form is embarrassing and should be struck out.

Paragraph [12]

1. [39]

   Paragraph [12] flows on from paragraph [11]. Paragraph [12] relevantly pleads:

2. [40]

   The defendants submitted that the vast breadth of paragraph [12] makes it embarrassing to plead to, there are no particulars of any allegation and there is no proper allegation or particularisation of alleged knowledge as against each defendant and it should be struck out.

3. [41]

   The defendant submitted that what paragraph [12] actually says is that the first defendant and the 13 named defendants failed to take any action against child sexual abuse within the schools they worked at and, even if it is talking about action in relation to these schools, it is not pleaded that they individually knew or that they had any particular role in relation to these 11 schools out of the 30 schools specified in paragraph [2] (T21.24-29). There is no identification of which act in paragraph [12](a) to (h) was reasonably taken or not taken by which defendant. Counsel for the defendants submitted that this paragraph seeks to import into 13 occasions criticisms of those 13 occasions but without proper identification of which criticism relates to each occasion and how that criticism arose, therefore the paragraph should be struck out.

4. [42]

   This paragraph is similar to paragraph [10] but refers mainly to prospective allegations of sexual assaults on students by priests and teachers at other Marist Brothers schools across Australia. The allegations relate to the action or lack of action taken by the defendants when they knew or ought to have

Paragraph [13A]

1. [43]

   Paragraph [13A] pleads:

2. [44]

   Senior counsel for the defendants submitted that the same problem arises here, namely, the paragraph pleads that the asserted reports to multiple people in multiple schools after the plaintiff’s sexual abuse somehow grounds a liability on the part of the Marist Brothers and the named 13 defendants and that they failed to take any reasonable steps not to prevent the child sexual abuse in their school and this is completely irrelevant (T22.7-18).

3. [45]

   What the defendants did after the plaintiff was allegedly sexually abused does not inform the content of the duty of care and its breaches. This prospective pleading is even more irrelevant than the pleadings in the earlier paragraphs [9] and [10]. It is embarrassing and should be struck out.

Paragraph 18

1. [46]

   The defendants do not object to the whole of paragraph [18]. The particulars that are confined to the plaintiff and the teacher are not the subject of objection.

2. [47]

   Paragraph 18 relevantly pleads:

3. [48]

   The defendants say that these particulars ought to be struck out for the following reasons:

   1. (1)

      Paragraph [18](j): there is no identification of the persons said to constitute the child sexual abusers and hence the paragraph is impermissibly vague. The contention does not identify a period of time for the failure or the places where the failures took place. Finally there is no proper particularisation of the knowledge of each defendant, as there must be.

   2. (2)

      Paragraph [18](k): there is no identification of the persons said to constitute the child sexual abusers and hence the paragraph is impermissibly vague. There is no identification of the schools referred to. The contention does not identify a period of time for the contended failures. There is no identification of the complaints referred to, nor the children referred to.

   3. (3)

      Paragraph [18](l): the breadth of this particular renders it meaningless and embarrassing and is productive of prejudice and ought be struck out.

   4. (4)

      Paragraph [18](m) to (r): all of these sub paragraphs are embarrassing, impossibly vague and are unable to be pleaded to and thereby cause prejudice in the conduct of the case. There is no identification of the facts in question by reference to people, places or dates.

   5. (5)

      Paragraph [18](t): there is no identification of what representations were made, by whom and when. The paragraph ought to be struck out.

   6. (6)

      Paragraphs [18](i) and (u) are no longer pressed.

   7. (7)

      Paragraph [18] generally: the plaintiff is seeking to introduce wide ranging allegations and a vast array of alleged conduct in a wide number of unidentified schools over an unidentified period of time by a set of unidentified persons, rendering the paragraph wholly embarrassing. The plaintiff is seeking to introduce a set of facts in the most general of terms which is unexplained by reference to the essential matters of this case – duty, breach and damage. The whole of the paragraph is wholly objectionable.

4. [49]

   The particulars in paragraph [18] are wide ranging and a general wrap of general criticisms that may be made against the defendants. They do not inform the scope of the duty of care owed towards the plaintiff by the school. In my view, they also should be struck out. I need not consider whether these pleadings that are objected to are also an abuse of process.

Conclusion

1. [50]

   The PASC does not comply with s 56 of the Civil Procedure Act 2005 (NSW). The wide pleading in this document does not facilitate the just, quick and cheap resolution of the real issues in the proceedings.

2. [51]

   Leave should not be granted to file the PASC in its current form. Paragraphs [2], [9], [10], [11] (excluding [11](b)), [12] (excluding [12](a)), [13A] and [18](j) to [t] of the PASC are embarrassing and should be struck out. The PASC now has gaps in it. The statement of claim should be struck out.

3. [52]

   The defendants did not oppose the filing of an amended statement of claim. This is the first time the plaintiff has sought to amend his statement of claim. In the exercise of my discretion, the plaintiff should be afforded the opportunity to file a new and cohesive amended statement of claim. An amended statement of claim should be filed within 28 days.

4. [53]

   Costs are reserved.