BRJ v The Corporate Trustees of The Diocese of Grafton

On 14 January 2020, the plaintiff, to whom the pseudonym BRJ has been given by order of the Court, commenced proceedings by the filing of a Statement of Claim claiming damages for sexual abuse.

He alleged that the sexual abuse occurred at the hands of an ordained Anglican priest, Allan Kitchingman, whilst the plaintiff was a resident at the North Coast Children’s Home (“the Home”) in Lismore, which at the relevant time was located in the Parish to which Mr Kitchingman was attached.

The proceedings are commenced against the Corporate Trustees of the Diocese of Grafton (“the Trustees”) which are sued as the proper defendant pursuant to the provisions of Part 1B Division 4 of the Civil Liability Act 2002, with respect to the acts and omissions of those in charge of the care and management of the Home, and the Diocese of Grafton which was, it is alleged, responsible for the appointment of, management and control and supervision of, ordained Anglican priests within the Diocese.

The plaintiff pleads that he became a resident of the Home on 27 April 1974 and remained there until late 1979. He alleges that in December 1974 and/or January 1975, he was sexually abused by Mr Kitchingman. He pleads that the sexual abuse occurred at Mr Kitchingman’s home located on the north coast away from Lismore:

It will be necessary to examine in some detail the pleadings, but on 17 April 2020 the Trustees filed a Defence, relevantly admitting Mr Kitchingman was an ordained priest during the relevant time and a member of the clergy of the Diocese of Grafton. They admitted that he was the Chaplain of the relevant Parish in which the Home was situated. The Trustees do not admit the allegations of the abuse, saying that it does not know those facts and therefore cannot admit them.

On 28 October 2020, the Trustees filed a Cross-claim against Mr Kitchingman. That Cross-claim sought indemnity or contribution from Mr Kitchingman pursuant to the provisions of s 5 of the Law Reform (Miscellaneous Provisions) Act 1946.

On 4 March 2021, a Notice of Motion was filed by the solicitor for Mr Kitchingman (the “Kitchingman Motion”), the cross-defendant, which sought the following relief:

The filing of this Notice of Motion provoked the Trustees to file a Notice of Motion on 15 April 2021 (the “Trustees Motion”), which sought the following relief:

The hearing of these two Notices of Motion proceeded together.

In general, the Trustees did not oppose the orders sought in the Kitchingman Motion. In particular, they did not oppose the application for a permanent stay of the Cross‑claim, so long as the orders sought in the Trustees Motion were also granted. They relied in part on Mr Kitchingman’s situation to support their application for a stay of the plaintiff’s claim.

Mr Cameron Bilinsky, a solicitor, received instructions from Mrs Janette Kitchingman to act for her husband in November 2020 for the sole purpose of making an application for a permanent stay of the Cross-claim against her husband. He was informed by Mrs Kitchingman that her husband suffered from Alzheimer’s Disease and that she had spoken to her husband about the court documents that had been served and he had exhibited no understanding to her of the contents of them.

Mr Bilinsky swore two affidavits referring to the information he could put together with respect to Mr Kitchingman’s position. Neither party challenged that information, and there is no reason why I should not accept it.

The following account of the facts and Mr Kitchingman’s mental state is derived from Mr Bilinsky’s evidence.

In May 2019, Mr Kitchingman was served a Court Attendance Notice (“CAN”) requiring him to attend the Local Court at Newcastle to answer a charge of an offence contrary to s 79 of the Crimes Act 1900 of buggery which was alleged to have occurred between January and September 1978 at Lennox Head. The victim of that crime is not the plaintiff, BRJ. On 10 June 2020, Mr Kitchingman was committed to stand trial in the District Court on that charge. Prior to the presentation of an Indictment, the issue of Mr Kitchingman’s fitness to be tried was raised by his lawyers. That question was determined by McLennan DCJ sitting alone on the balance of probabilities and was determined using the criteria set out in R v Presser [1958] VR 45 as affirmed in Kesavarajah v R (1994) 181 CLR 245; [1994] HCA 41.

The principal evidence before McLennan DCJ was an expert report of Dr Sharon Reutens dated 13 August 2020.

At the time of her report, Dr Reutens noted that Mr Kitchingman was an 87‑year‑old man who lived with his wife and a 20-year-old grandson. Although his granddaughter was present at the start of the interview conducted by Dr Reutens via audio-visual means, Mr Kitchingman stated that he did not have any children and was unsure of the relationship between himself and his granddaughter. Dr Reutens diagnosed a major neurocognitive disorder due to Alzheimer’s Disease.

She expressed this opinion:

On 24 September 2020, McLennan DCJ accepted that opinion and found that Mr Kitchingman was unfit to stand trial. As he was obliged to do, he referred Mr Kitchingman to the Mental Health Review Tribunal (“the Tribunal”), which heard the matter on 30 March 2021. It reached a decision, on 27 April 2021, which determined that Mr Kitchingman had not become fit to be tried with the offence with which he had been charged and would not during the period of 12 months from 24 September 2020 become fit to be tried.

The Tribunal had before it some further evidence. Dr Penelope Webster, a staff specialist in geriatric medicine in the Hunter New England Local Health District, expressed her opinion that Mr Kitchingman had “a diagnosis of Alzheimer’s Dementia on a background of complex comorbidity, including cardiovascular disease”. Dr Webster considered that Mr Kitchingman had a clinical dementia rating of 2.0 which was consistent with moderate impairment and meant that he had:

Dr Reuten also gave a further report. She adhered to the diagnosis which she gave in the District Court and expressed the view that Mr Kitchingman’s major neurocognitive disorder was moderately severe. She went on to say that Mr Kitchingman’s condition was “… a degenerative neurological condition manifesting as a prominent impairment in memory along with a decline in other cognitive abilities” which was “… irreversible and characterised by declining cognitive functioning resulting in increasing requirement of care.”

Of importance is that in her report to the Tribunal, Dr Reutens observed that Mr Kitchingman had a tendency to confabulate at times because of gaps in his memory. Of this, she said that it was not a deliberate deception but was “… part of the clinical picture of dementia” and that as a result “his account of the time period in which the alleged events occurred [1978] would be unreliable”. She also thought that he would provide contradictory instructions to his lawyers. She did not think he had the capacity to instruct his lawyers. She also expressed the view that Mr Kitchingman’s cognitive capacity would continue to deteriorate and that, notwithstanding the administration of medication, ongoing deterioration was inevitable.

In his affidavit, Mr Bilinsky noted that Mr Kitchingman was convicted in 1968 for an offence of indecent assault on a 16-year-old boy. He was placed on a bond to be of good behaviour for two years. Again, it is not suggested that the victim of that indecent assault was the plaintiff, BRJ.

Mr Bilinsky noted that in 2002, Mr Kitchingman pleaded guilty to five counts of indecent assault of a male which occurred in or about 1975 and 1976. He was sentenced to a term of imprisonment of 18 months between July 2002 and about February 2004.

Mr Bilinsky noted that he was given a history by Mrs Kitchingman that she first noticed signs of Mr Kitchingman’s mental decline in 2018. She said his memory began to fail and he had trouble remembering things which were familiar to him. He returned his driver licence in June 2019. He suffered a physical injury in late 2019 and that physical injury seems to have accelerated his mental decline dramatically. By way of example, in early 2020 it was necessary for Mr Kitchingman to undergo two separate rounds of radiotherapy to treat two melanomas which had been diagnosed. Each round involved a schedule of 28 days of regular treatment. Although it was a matter of routine, Mr Kitchingman would, on many occasions, ask his wife where they were going and when he arrived at the hospital for his treatment, he would ask his wife why they were there.

It is clear from Mr Bilinsky’s affidavit, which relates various incidents described to him by Mrs Kitchingman, that Mr Kitchingman has false memories where he recounts stories which are quite untrue and that he is unable to remember events of significance from the past which are true.

The effect of his diagnosis is that he cannot provide rational instructions, has significant difficulty with his memory and cannot be regarded as being capable of giving an accurate account of the events, the subject of the plaintiff’s claim. As well, it would not be reasonably practicable for him to give evidence because he would have significant difficulty understanding the content and effect of the evidence given against him and his capacity to give evidence in his own defence would be substantially deficient. There is no expectation that his present status would improve, rather the expectation is that it would continue to deteriorate.

All of this evidence satisfies me that Mr Kitchingman has no capacity to respond to the Cross-claim brought against him.

In order to make any assessment as to the appropriateness of making the orders sought in each of the Notices of Motion, it is necessary to understand the facts of the abuse which are alleged by the plaintiff and then the way in which the case is pleaded and is to be presented.

The witness statement of BRJ dated 1 April 2021 was placed before the Court to indicate the evidence which it is anticipated BRJ would give at a hearing. It is a lengthy and detailed statement.

BRJ recounts that in April 1974 his mother fell ill and died. At about that time, his father, who was elderly, had failing health and was unable to care for his children. As a consequence the plaintiff and his younger brother were placed in the Home. An older sister lived independently and another sister, who was younger, went to live with her grandmother.

BRJ noted that the Home was situated on grounds adjacent to St Andrews Church in Lismore. It had two residences initially and a third residence was added during the time that the plaintiff was at the Home. He recorded that there were separate blocks for girls and boys – both of whom were cared for at the Home, and that the Home housed children between the ages of 4 and 18 years.

BRJ described the abuse in the following way:

BRJ went on to note that although there was no further episode of sexual abuse whilst billeted with Mr and Mrs Kitchingman, nevertheless Mr Kitchingman would say things about “releasing himself” from time to time for the remainder of the period that he was billeted there. It is clear that Mr Kitchingman said things to BRJ which reassured him that what he was talking about was normal.

BRJ recorded that he only ever saw Mr Kitchingman one time after his Christmas stay at the home of Mr and Mrs Kitchingman. It was either one or two years later – he encountered him in a laneway outside the Home and had a short exchange of conversation.

Prior to being billeted with Mr and Mrs Kitchingman, BRJ gives an account that a number of members of the Anglican clergy moved freely around the Home and within its buildings. The children at the Home were required to attend numerous Church of England-related events such as Sunday School, Fellowships and Picnic Days. He recorded that the then-Bishop of the Diocese of Grafton often visited the Home. As earlier noted, he has no clear recollection of meeting Mr Kitchingman before he was billeted over Christmas in 1974 and noted that he may have seen him around the Home but was not sure about that.

The plaintiff’s claim is pleaded in a Statement of Claim filed 14 January 2020. The plaintiff pleads that the Board of Management of the Home and the Diocese owed him a direct duty of care “… to protect him from a reasonably foreseeable risk of harm”. That risk, which is the subject of the duty and which the plaintiff pleads the Board of Management of the Home and the Diocese knew or should have known of, is the risk of the plaintiff being sexually abused and thereby suffering psychiatric injury, seemingly whilst a resident at the Home. It is relevant to note also that the plaintiff pleads that, in 1968, Kitchingman was charged with and convicted of committing an indecent assault of a child under the age of 16, and that the Diocese and Board of Management each knew or should have known that Kitchingman had been so charged and convicted.

As against the Diocese, the plaintiff pleads that it breached its direct duty of care in the following ways:

As against the Board of Management of the Home, the particulars of negligence really mirror those pleaded against the Diocese with slight adjustments to reflect the position of the Board of Management.

Insofar as the plaintiff pleads a claim in vicarious liability, it is in the following form:

The plaintiff pleads as a consequence of the breaches of duty and the abuse by Mr Kitchingman, for which he claims the defendants are vicariously liable, that he suffered injury, loss and damage.

The Trustees have filed a Defence which admits that Mr Kitchingman was a member of the clergy of the Anglican Diocese between 1969 and 1970 and then between 1 January 1973 and 1976. It admits that between 1969 and 1970, which is before BRJ became a resident at the Home, Mr Kitchingman was a curate and assistant priest at the Home. In the period from 1 January 1973 to 1976, the defendant admits that Mr Kitchingman was the chaplain of St Andrews Church which was part of the Parish of St Andrews as was the Home.

The defendant pleads that it is unable to know for how long the plaintiff resided at the Home because it has been unable to locate any records, but it admits that he did take up residence in April 1974.

The defendant in answer to the pleadings of the sexual abuse, pleads that it does not know and cannot admit any of the details of the sexual abuse.

The Trustees relied on an affidavit of Mr Christopher Nelson, the Registrar and General Manager of the Corporate Trustees of the Diocese of Grafton, which sets out the results of his investigation regarding the plaintiff’s claim. Mr Nelson was not cross-examined on this evidence and it was not suggested that I should not accept it. I do.

Mr Nelson said that the Home was established in 1919 and from 1936 it was located in Lismore and formed part of the Lismore Parish. He says that the Home was within the grounds and adjacent to St Andrews Church and the Rectory of the Church. The Home was managed by an Executive or Board of Management and the Rector of St Andrews Church was the President of the Board and the Chaplain of the Home.

Mr Nelson both undertook, and caused to be undertaken, searches which related to matters relevant to these proceedings. Mr Nelson deposed to the fact that the only existing records of the plaintiff’s attendance at the Home are copies of the formal documentation surrounding his admission on 27 April 1974 and a report from an officer of the Department of Youth and Community Services in Grafton dated 28 October 1974, which was directed towards whether and in what circumstances the plaintiff ought to have contact with his father who, by that time, was seemingly senile and perhaps mentally ill as well.

Other than those documents, there are no specific documents in the possession of the defendant dealing directly with, or concerning, the plaintiff.

On the other hand, it seems that there is a volume of documents with respect to Mr Kitchingman which are available and which were produced to the Royal Commission into Institutional Responses to Child Sexual Abuse in response to a Summons. Further observations are made below with respect to all of those documents.

Mr Nelson’s affidavit establishes the further following facts:

Mr Kitchingman was ordained in 1963, at which point he began his service at Singleton in the Diocese of Newcastle. In 1966, he moved to Wallsend within the same Diocese, where he served as a priest until he was charged with indecent assault on a male person in around late 1968.

On 14 November 1968, the Bishop of Newcastle, the Right Reverend James Housden, wrote to the Bishop of Grafton, the Right Reverend Gordon Arthur, in the context of a priest in the Diocese of Grafton transferring to the Diocese of Newcastle, and the effect that such a transfer may have on the Diocese of Grafton. The Bishop of Newcastle included in that letter the following:

The Bishop of Newcastle added this handwritten note to the bottom of the letter. It said:

On 22 November 1968, Mr Kitchingman was committed for sentence, after a plea of guilty to a charge of indecent assault on a male person. On 15 December 1968 he was dealt with at the Court of Sessions in Newcastle where the imposition of a sentence was deferred upon him entering into a recognizance to be of good behaviour for a period of two years. Not all of the information about those charges is available. However, a Pre‑Sentence Report is available and is summarised below.

On 4 December 1968, the Bishop of Newcastle wrote a reference for Mr Kitchingman addressed to the Chairman of the Newcastle Quarter Sessions. In that letter he included the following material:

A Pre-Sentence Report dated 10 December 1968, from the Adult Probation Service (“the APS”), is available. It contains a good deal of Mr Kitchingman’s background. It records that Mr Kitchingman had, prior to being ordained as a priest in the Anglican Church, worked as a musician in Sydney. During that time the report notes that he met many homosexuals in musical and artistic fields, but had stated to the APS that “he never participated in homosexual, or for that matter heterosexual, behaviour probably because of strong religious and moral attitudes”. However, the author of the report records their suspicion that during this period Mr Kitchingman developed “a tolerance towards homosexuals”. Individuals who were consulted expressed surprise that Mr Kitchingman had committed the offence, the subject of the charge.

The Report then contains the following material:

The probation officer made enquiries about the work of Mr Kitchingman in the Singleton and Wallsend areas and said that those whom he had consulted “without exception, supported this view”.

The Probation Officer summarised his opinion in this way:

The Bishop of Newcastle wrote again to the Bishop of Grafton on 13 December 1968, in the following terms:

On 18 July 1977, the Honorary Secretary of the Board of Management of the Home wrote an Annual Report. In it the Honorary Secretary expressed the thanks of the Board of Management to a number of different people “… because without their wonderful support, the home would not be able to continue…”. He then included this paragraph: “The families who take our children into their homes for school holidays (one of the most important forms of support that we receive from the community)”. Such a statement is consistent with a newspaper article which appeared in the Sawtell Guardian on 17 July 1975. The article was headed “Appeal for Holidays” and included the following:

In the 1977 Annual Report, the Honorary Secretary also expressed the appreciation of the Matron and of the Management Committee to a number of people. That expression of appreciation included the following statement:

The plaintiff has also put before the Court a number of minutes of various meetings of the Executive of the Home in the period from 1970 to 1979. It is not possible to know if this is a complete set of minutes, although, having regard to the fact that there is regularly a reference to monthly meetings of the Executive, it seems doubtful that a complete set of these minutes has been provided.

Mr Kitchingman retired as an Anglican priest in 2000. On 19 April 2002, two years after his retirement, Mr Kitchingman pleaded guilty to five counts of indecent assault on a male person. The counts were each constituted by an offence against s 81 of the Crimes Act. Mr Kitchingman appeared in the Newcastle District Court on 29 July 2002, when he adhered to his pleas of guilty. On 5 August 2002, he was sentenced by Coolahan DCJ to a period of imprisonment which comprised 15 months non-parole, with a balance of term of 15 months.

The sentencing remarks of Coolahan DCJ noted that the offences occurred against a 13-year-old boy who was a resident of the Home. They generally occurred in association with the playing of a musical instrument, and when Mr Kitchingman took a number of boys from the Home to work at a Youth Conference Centre in east Ballina. The group of boys usually left on a Friday afternoon and returned to the Home in Lismore on the following day. On one occasion the victim was taken by Mr Kitchingman, together with other boys, to a restaurant for dinner before returning to the Youth Conference Centre. The offences occurred, generally, at night in the hall of the Youth Conference Centre, where the group slept during their stay overnight. The conduct was described as forming part of a course of conduct involving many more similar incidents towards the same victim over a 12-month period. In the course of the sentencing remarks, part of the content of a report from Dr Bruce Westmore, a forensic psychiatric, about Mr Kitchingman was set out by his Honour.

His Honour said this:

In June 2014, the Professional Standards Board of the Diocese of Grafton considered the material relating to Mr Kitchingman – in particular, the offences with which he was charged in 2002. It recommended to the then Bishop of Grafton that Mr Kitchingman be deposed from Holy Orders. The Right Reverend Dr Sarah Macneil, the then Bishop of Grafton, acted upon that recommendation, and on 23 June 2014 she deposed him from Holy Orders.

The plaintiff relied on the affidavit of Ms Sangeeta Sharmin, affirmed on 18 June 2021, in which attention is drawn to a letter dated 19 December 1966, from the Bishop of Gippsland to the Bishop of Grafton, referring to Mr Kitchingman as being “under a bond of five years” and having served three years at that time. Having regard to the other records which are available, particularly Mr Kitchingman’s criminal history, my interpretation of this letter is that it has nothing to do with any possible criminal offending or the imposition of any good behaviour bond which might refer to criminal offending. Rather, it refers to internal administrative arrangements within the Anglican Church in circumstances where individuals were trained and acted as junior priests, and expenditure was made for their benefit by one or other Diocese. It has no relevance to the current proceedings.

The second matter is that Ms Sharmin drew attention to a confidential file note prepared by Mr Elliott, the Director of Professional Standards, in the Diocese of Newcastle. The file note contains reference to a suggestion that the Diocese files on Mr Kitchingman had been amended and a yearbook falsified with respect to him.

Ms Sharmin then annexed over 100 pages of copy documents of annual yearbooks, directories and the like. However, I have not found those documents to be of any relevance at all since they refer to the Catholic Church as opposed to the Anglican Church. It is unsurprising in those circumstances that those documents contain no reference to Mr Kitchingman.

I am otherwise satisfied from all of the evidence that the facts which have been recounted are accurate with respect to the service of Mr Kitchingman in the Diocese of Newcastle and Grafton and to his various postings.

There is no doubt that this Court has the power to order a permanent stay of proceedings involving claims for damages for historic sexual abuse.

The authorities recognise that, notwithstanding the amendments made in 2016 to the Limitation Act 1969 so as to abolish the existence of any limitation period in respect of such claims, the Supreme Court’s statutory power and inherent jurisdiction remains: Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [32]-[38].

Bell P (as his Honour the Chief Justice then was) in Moubarak at [71] said:

In The Trustees of the Roman Catholic Church the Diocese of Lismore v GLJ [2022] NSWCA 78, Mitchelmore JA (with whom Macfarlan and Brereton JJA agreed) said at [115] that the burden to which Bell P had referred in [71(1)] of Moubarak which fell “squarely” on a defendant included demonstrating that all reasonable enquiries which bear upon the fairness or unfairness of the proceedings had been undertaken. Her Honour relied upon the remarks of Payne JA in Gorman v McKnight [2020] NSWCA 20 at [94].

As the authorities make clear, it is necessary to consider the facts of each case with respect to the application by a party for a permanent stay because the determination of whether the circumstances are exceptional such that the interests of the administration of justice demand a permanent stay can only be determined on a case-by-case basis.

At this stage, it is convenient to set out the legal principles applicable in this case for the consideration of whether the issues involved in the determination of such causes of action are such that, having regard to the facts, the proceedings ought be permanently stayed.

The plaintiff alleges that the Trustees, as being responsible for the unincorporated Board which had the management and conduct of the Home, are directly liable to him for their negligence in failing to take the reasonable precautions referred to in [37] above, any one or more of which would, if taken, have prevented the abuse by Mr Kitchingman of the plaintiff. A similar allegation is made against the Diocese for whom the Trustees accept legal responsibility.

There is nothing unusual about such a claim. The plaintiff will need to establish that he was owed a duty of care to take reasonable precautions so as to prevent the mental harm consequent upon the sexual abuse being perpetrated upon him. In so doing, the plaintiff will have to demonstrate that there were steps which were capable of being taken, were reasonable to take and, having regard to the other matters referred to in the Civil Liability Act, ought to have been taken.

Insofar as the allegation in paragraph 40 of the Statement of Claim is concerned, namely that the acts and omissions of Mr Kitchingman occurred within the course of his employment, service or agency with the Diocese or the Board of Management, it will be necessary for the plaintiff to show that the carrying out of sexual abuse by Mr Kitchingman, consequent upon him being billeted at the home of Mr and Mrs Kitchingman over the school holidays, occurred within the scope of his duties as a priest in the Diocese of Grafton.

To defend the claim of BRJ, it will be necessary for the Trustees to be able to give instructions about the circumstances giving rise to the billeting of children from the Home generally, and the particular billeting arrangements at the time of when the abuse occurred. Those instructions can only be based on what the material described above showed or else what Mr Kitchingman might have been able to tell them.

In considering the issue of vicarious liability, much will depend upon issues relating to the relationship between Mr Kitchingman and the Home, and the Parish of St Andrew in which it was situated. That is because the identification of a general principal for vicarious liability has “… eluded the common law for a long time”: Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 at [44]. It will be necessary to consider whether the approach taken in decided cases provides a solution or a path to solution.

In Prince Alfred, the plurality (French CJ, Kiefel, Bell, Keane and Nettle JJ) said at [80]-[81] this:

In drawing attention to these statements in the High Court, I do not overlook the factual issues surrounding the role of Mr Kitchingman as an Anglican priest in the Diocese of Grafton nor do I overlook the issue as to all of the surrounding circumstances involved with the billeting process. That billeting process may have had nothing to do with his direct roles and responsibilities as an Anglican priest of the Diocese. On the other hand, it may be that on examination it appears that it was an expectation placed upon priests of the Diocese to participate in the billeting of children from the Home or that in some other way there was a significant connection between the fact that Mr Kitchingman was an Anglican priest and, regardless of how the billeting came about, that was the relevant position in which he was placed vis-a-vis the plaintiff.

These are all matters which at trial would require careful examination.

It is convenient to commence with the submissions for the cross-defendant, Mr Kitchingman. It was submitted that a careful examination of the pleading and the plaintiff’s evidentiary statement indicates that the relevant event of sexual abuse occurred on one occasion only, and then when only the plaintiff and cross-defendant, Mr Kitchingman, were present. The plaintiff’s evidentiary statement noted that the sexual abuse occurred at a time when Mrs Kitchingman and another young woman, who was staying with them, had left the house and were not present.

The cross-defendant noted that the plaintiff did not tell anyone about the sexual abuse at any time contemporaneously with its occurrence. He noted that the first person that the plaintiff informed about the abuse was his brother, Peter, in 2018. At paragraph 117 of the plaintiff’s statement, he said:

The cross-defendant did not criticise the plaintiff in any way for not informing anyone prior to 2018. He merely drew attention to the fact that the consequence of this disclosure at that time means that there is no corroborative contemporaneous material about the occurrence of the abuse, what in fact happened, or any other detail about it.

The cross-defendant next pointed to the extensive expert evidence about the current mental capacity of Mr Kitchingman and submitted that he has no capacity to respond in any way at all to the Cross-claim brought against him. The cross-defendant submitted that the effect of Mr Kitchingman’s diagnosis is that he cannot provide instructions for the conduct of the defence and could not be regarded as giving an accurate account of the facts if he was called as a witness because of his tendency to confabulate and also because he has a clear inability to remember events of significance from the past.

In those circumstances, shortly put:

Finally, the cross-defendant drew attention to the fact that the experts opined (and McLennan DCJ accepted) that such was the cross-defendant’s condition, it fulfilled the criteria set out in Presser at 48 and that although such decision referred to the position of an accused in criminal proceedings, it nevertheless had relevance to the considerations of the Court in dealing with the Kitchingman Motion. In so doing, the cross-defendant drew attention to the remarks of Bell P in Moubarak at [108]-[109] where his Honour said:

In his submissions, counsel for the Trustees did not challenge the submissions of counsel for the cross-defendant that Mr Kitchingman could not have a fair hearing of the civil claim against him.

Counsel for the Trustees made it plain that if the Court was satisfied that the condition of the cross-defendant was such that he could not contest in any meaningful way the allegation against him that he sexually abused the plaintiff, then in those circumstances the position of the Trustees was identical.

Counsel drew attention to the fact that the critical factual finding upon which the plaintiff’s case rested was the fact that sexual abuse in fact occurred. Counsel submitted that the Trustees had no source of information about that other than from BRJ on the one hand and Mr Kitchingman on the other. Any defence which the Trustees could mount involving a contest as to whether the sexual abuse occurred, and therefore whether any cause of action against them existed, could only be determined by the availability of a contest on the facts which necessitated the ability of Mr Kitchingman to give an account of what occurred.

In that respect, counsel submitted that the Trustees were in an identical, if not more disadvantageous, position than the cross-defendant.

Counsel also drew attention to the fact that it seemed that the plaintiff may well seek to rely on evidence which occurred after the abuse was alleged to have been perpetrated on the plaintiff but, nevertheless, involving the cross‑defendant as pointing, by way of tendency evidence, to circumstances which corroborated the account of the plaintiff. Counsel submitted that if such facts were to be relied upon as tendency evidence, then the Trustees’ disadvantage and prejudice would increase. That is because the Trustees would not be able to contradict any factual version of those other accounts given by the complainants and, in respect of one of the events giving rise to the relevant tendency evidence (where Mr Kitchingman had pleaded guilty in 2002), the Trustees did not have the opportunity to explore with him what in fact occurred and whether it had any similarity, and if so what, to the events in question in these proceedings.

Finally, the Trustees submitted that it would be fundamentally unfair to them if the proceedings against them brought by the plaintiff were not stayed but the Cross‑claim by them against Mr Kitchingman was stayed because they could not have a fair trial of their claim for indemnity or contribution from Mr Kitchingman whilst being exposed to the claim by the plaintiff.

The plaintiff submitted that the Court would not grant a permanent stay to the Trustees in respect of the claim which he had brought against them. The plaintiff only addressed the facts relevant to the current mental condition of Mr Kitchingman in the context of the way in which those facts were relevant to the proceedings which only he had brought. He noted that he had not brought proceedings directly against Mr Kitchingman and submitted that the Court had to undertake a separate assessment of whether the Trustees had shown that a trial against them would not be fair.

The plaintiff submitted that although Mr Kitchingman might not be in a position to give instructions to his lawyers for the purpose of conducting his defence to the Cross-claim, the same could not be said of the Trustees. The plaintiff drew attention to the fact that the Trustees were a corporate body and were capable of giving instructions to their appointed lawyers as to the way in which the proceedings ought be conducted, including making any necessary or appropriate admissions or, alternatively, putting in issue any relevant matters.

In support of this submission, the plaintiff pointed to the fact that both the Defence filed in the proceedings and the Cross-claim contained certifications by the lawyer for the Trustees that the Defence had reasonable prospects of success and that the Cross-claim likewise had reasonable prospects of success. Both certificates are said to be based upon “provable facts and a reasonably arguable view of the law”.

The plaintiff further submitted that the Court needed to differentiate the mental state of the cross-defendant between the time when proceedings were commenced by the filing of a Statement of Claim on 14 January 2020, when the Defence was filed on 17 April 2020, and about six months later when the Cross-claim was first filed on 20 October 2020.

The plaintiff submitted that the evidence about the state of the cross‑defendant’s mental condition in the nine months between when the proceedings were commenced and the Cross-claim was filed in 2020 did not suggest that the Trustees were disadvantaged in their ability to investigate the claim, including by taking a statement from Mr Kitchingman as to what had occurred between him and the plaintiff.

The plaintiff submitted that there was no reason to doubt that, had such steps been taken which would have formed part of the reasonable enquiry obligation on the Trustees during that period, Mr Kitchingman could have given a reasonably accurate account of what had occurred. The plaintiff submitted that the Trustees had failed to make appropriate and timely enquiries and disclosures about the activities of Mr Kitchingman and, accordingly, any prejudice by elapse of time should be borne by them and not the plaintiff.

The plaintiff noted, in particular, that a litigant in his position, acting in accordance with the law as amended by the removal of the limitation period, ought not be deprived of their right to submit a real and genuine controversy to the determination of the Court except in the most exceptional of circumstances when the interests of justice demanded that their right to bring a claim should be prevented: Williams v Spautz (1992) 174 CLR 509 at 519; [1992] HCA 34.

The plaintiff pointed to the public interest in claimants such as himself having the opportunity to present his allegations in court and to seek vindication.

In dealing with the proposition that it was unfair to the Trustees to have a trial of the plaintiff’s claim because the cross-defendant could not give evidence and that thereby any trial would be unfair, the plaintiff submitted that the absence of evidence on one important issue, whilst it may be taken to constitute a less than perfect trial, did not mean that a fair trial was not possible. The plaintiff drew attention to the fact that in many cases there may be an absence of a witness or witnesses completely from proceedings or else witnesses whose memory has been lost, and that this will not mean of itself and without more that a fair trial cannot be obtained. The plaintiff noted in its submissions that, at best, any factual account to be given by Mr Kitchingman would be given in no higher capacity than as a witness for the defendant, or perhaps in his own defence of the Cross-claim.

The plaintiff submitted that, having regard to all the material and the existence of the Cross-claim, the Court should conclude that it was highly improbable that the defendants would have called Mr Kitchingman to give evidence in its case and that it would be most unlikely that the defendants would rely on any evidence that Mr Kitchingman gave on the Cross-claim in answer to a claim by the plaintiff.

The plaintiff drew attention to the defendant’s records which have been summarised above. In particular, the plaintiff noted records of the conduct of Mr Kitchingman in indecently assaulting a 13-year-old boy in 1975 – for which he was convicted in 2002 – and the allegation of assault, which is said to have emerged in 2018, at, amongst other places, the cross-defendant’s home.

Put differently, the plaintiff submitted that:

Finally, the plaintiff submitted that as a matter of discretion the Motion would be dismissed. The plaintiff pointed to three matters which demonstrated that the discretion should not be exercised in favour of the Trustees. The first was that it was clear from the records of the defendant that in 1968 the Bishop of Grafton had knowledge that the cross-defendant posed a risk to young people – yet he did not act to prevent young people coming under the unsupervised control of Mr Kitchingman. Secondly, the plaintiff submitted that the contents of a report of the Professional Standards Board of the Anglican Diocese of Grafton identified serious matters which gave rise to the question of whether there may be other unknown victims of Mr Kitchingman’s abuse, which statements were not followed up by any further investigation.

Finally, the plaintiff submitted that the Trustees had not made all reasonable enquiries relevant to the plaintiff’s claim including that they had not made any attempt to interview Mr Kitchingman’s wife as to the contextual facts surrounding the abuse of the plaintiff at any time.

The plaintiff submitted that in considering the exercise of the discretion, the Court would also need to weigh up the unfairness to him in circumstances where he brings his claim based on events which have had a profound effect on his life.

The evidence which has been summarised earlier clearly demonstrates that Mr Kitchingman does not have the capacity to give instructions to his solicitors to conduct the defence of the Cross-claim, nor does he have any capacity to give reliable evidence of a reliable account of the central events which have given rise to these proceedings, namely the alleged perpetration of sexual abuse by him on the plaintiff at his private home where the plaintiff was billeted during the Christmas holidays whilst otherwise a resident at the Home.

At no time has Mr Kitchingman, until the service of the Cross-claim upon him, been confronted with the sequence of events alleged by the plaintiff to have occurred. He has never had any opportunity to give his account of events at any time prior to the Cross-claim being served upon him. By that time, he was not able to accurately give any account of his version of the facts and circumstances.

There are only two possible eyewitnesses to the sexual assault, namely, the plaintiff and Mr Kitchingman. There are no documents currently in existence which bear upon the allegations which were not the subject of any contemporaneous complaint. Mr Kitchingman is simply unable to confront the allegations.

The position in which the cross-defendant finds himself is not of his own making in the sense that he has not done anything consciously to put himself in a position where he cannot give instructions or accurately recount events. As well, the finding by McLennan DCJ and the conclusion of the Mental Health Review Tribunal have reached the conclusion that Mr Kitchingman is not fit to be tried. In so doing, they have applied the criteria in Presser. I do not translate those criteria directly into this civil context. Nevertheless, I am satisfied that those findings have relevance in the consideration of the circumstances required for a fair trial of the civil proceedings. It would be a surprising finding that a civil hearing would not be unfair when dealing with an allegation of sexual abuse, but that a criminal trial for a similar allegation could not proceed because it was unfair in the circumstances here where the unfairness arises because, by reason of his diminished mental capacity, a party cannot understand or give instructions for the conduct of a trial.

Whilst, as I have said, I accept that the finding of a lack of fitness to stand trial does not directly relate to the same circumstances recounted by the plaintiff as constituting the sexual abuse, nevertheless, having regard to the basis identified for the finding that Mr Kitchingman was not fit to stand trial, and the general similarity of the circumstances (including the age of the complaints), I am satisfied that the fact that the cross-defendant is not fit to stand trial in a criminal jurisdiction is of relevance to any conclusion here.

All of these matters combine to mean, in my view, that the facts and circumstances are sufficiently persuasive for the Court to order the exceptional relief of a permanent stay of the Cross-claim by the Trustees against Mr Kitchingman.

The Trustees Motion seeks the same relief.

It is clear that the Trustees are capable of giving instructions to their lawyers. The contrary was not asserted. However, the factors which have led to the grant of a permanent stay on Mr Kitchingman’s application have importance in the consideration of the Trustees Motion. In the first place, the claim against the Trustees is based upon the identical sexual assault which is the subject of the Cross-claim. That is an event which occurred about 45 years before proceedings were commenced. The only two eyewitnesses to the assault were the plaintiff and Mr Kitchingman. The Trustees do not have available to them any documents about the alleged sexual assault other than those produced in the course of these proceedings. There is nothing in their records which touches upon the occurrence of the sexual assault, and only the barest detail about the fact that the plaintiff was billeted to the home of Mr and Mrs Kitchingman during a holiday period. The circumstances of that billeting, how the plaintiff was allocated to Mr and Mrs Kitchingman, what other available billeting arrangements (if any) there were and what other steps (if any) were taken with respect to that billeting, are simply unknown and at this far remove unknowable to the Trustees.

I accept that the evidence shows that, prior to Mr Kitchingman’s transfer to the Diocese of Grafton, the Bishop of Grafton was on notice that Mr Kitchingman had been dealt with for an offence of indecent assault, in respect of which he was placed on a bond to be of good behaviour. That occurred in 1968, and by the time of, and certainly for a number of years before, the assault on the plaintiff, there was no suggestion that there had been any breach by Mr Kitchingman of that good behaviour bond.

Further matters which have come to light with respect to Mr Kitchingman’s conduct did not include any reference to the plaintiff nor did they include any reference to abuse having taken place in circumstances similar to those described by the plaintiff. To the extent that any of these may be relied upon as constituting tendency evidence in support of the plaintiff’s allegations against the Trustees arising from Mr Kitchingman’s behaviour, the Trustees are disadvantaged because of their inability to obtain independently any material to confront the factual bases of these matters.

It seems to me that, contrary to the arguments of counsel for the plaintiff, the Trustees are in fact in a most disadvantageous position in terms of being the subject of a fair trial. They are entirely ignorant about the allegations made by the plaintiff against Mr Kitchingman themselves and there does not exist any means by which the conduct of the trial could relieve the consequences of the effect of Mr Kitchingman’s mental incapacity, nor the absence of records nor the availability of any witness who can testify to the circumstances of and surrounding the alleged abuse.

I do not accept that there has been any failure by the Trustees to undertake reasonable enquiries and investigations in circumstances where the alleged perpetrator, as here, was not part of the Diocese at the time the proceedings were commenced – he had by then retired as a priest of the Diocese and had been deposed from Holy Orders in 2014. It was not as though the Trustees could call upon the cross-defendant as an employee to give an account of events. Nor was it the case that the Trustees could call upon the cross‑defendant as a former member to give an account of events. Particularly is that so because, at the time these proceedings were commenced and served on the Trustees, Mr Kitchingman was the subject of criminal proceedings arising out of conduct as a priest in the Diocese of Grafton and would not be expected to readily assist the Trustees in respect of this civil claim.

As well, as is apparent from the Defence of the Trustees, in circumstances applicable here where they had no knowledge of the events in question, there was a real likelihood that they would wish to seek indemnity and/or contribution from Mr Kitchingman. There is no reason to think that Mrs Kitchingman would be in any different position to that of her husband i.e., even assuming that she could give some account of facts which might be relevant. She has not done so as yet.

The defendant’s submissions raise the issue of whether, because I have permanently stayed the Cross-claim, the unavailability to bring that Cross-claim is a factor to be considered in determining whether to grant a permanent stay. In my view, it is.

It is well-established that, in the context of applications to commence proceedings out of time, the inability to bring a cross-claim, which would have been available had the proceedings been commenced within time, is a form of prejudice to be taken into account in determining the application, so long as it amounts to “significant” prejudice, such that the loss of rights against third parties are “viable and realistic” and not merely “fanciful or theoretical”; Gallagher Bassett Services NSW Pty Ltd v Murdock (2013) 86 NSWLR 13; [2013] NSWCA 386 at [28] citing Creevey v Barrois [2005] NSWCA 264 at [56] per Basten JA; GIO General Ltd v Love [2009] NSWCA 269 at [40]; see also Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254 at [41].

It would be incongruous of the law to recognise the “significant prejudice” of the unavailability of a cross-claim in the context described above but to deny the recognition of such a similar prejudice in a context such as this case. That is so because the two types of application “raise similar issues”: see Weston v Publishing & Broadcasting Ltd [2011] NSWSC 433; 83 ACSR 206 at [237]‑[245].

The “significant prejudice” which may flow from the inability of the Trustees to bring the Cross-claim may amount to something “seriously and unfairly burdensome, prejudicial or damaging” and thus “oppressive”, in the sense those terms are used in Moubarak (at [71]) and the related cases.

In this case, however, I am not persuaded that the unavailability of the Cross-claim amounts to “significant prejudice” which should be given any weight in determining the Trustees Motion. That is because I cannot be sure that it was a “viable and realistic” and not merely “fanciful or theoretical” cross-claim, partly because, as it seems to me, any judgment against the cross-defendant would likely be worthless: cf Mabbett v Josef & Sons Contracting Pty Ltd [2006] NSWSC 1452 at [121].

Although I do not put any weight in the context of this case on the fact that the Cross-claim has been permanently stayed and is an event of potential disadvantage to the Trustees, I am abundantly satisfied that the Trustees are entitled to the exceptional relief by way of a permanent stay.

The Trustees do not have sufficient facts or information or knowledge that would permit them to participate in a contest against the plaintiff about whether a sexual assault, or sexual abuse of the kind alleged, occurred. Nor are they in a position, in the absence of any material in their possession to which reference has been made, of providing any explanation at all as to the circumstances surrounding the billeting of the plaintiff with Mr and Mrs Kitchingman when the abuse occurred.

They could not meet an allegation that they were vicariously liable for the criminal conduct of Mr Kitchingman, nor could they meet an allegation that there had been a systemic failure with respect to Mr Kitchingman’s home being used as a billet for the plaintiff – which is one of the two causes of action relied upon.

If the plaintiff sought to lead tendency evidence, that further contest would also be manifestly unfair because the Trustees could not meet and deal with it.

Any trial of BRJ’s claim against the Trustees would be one-sided and would be unable to be realistically contested in any substantial way by the Trustees. It may look like a trial to an uninformed observer, but it would be nothing “… more than a formal enactment of the process of hearing and determining the plaintiff’s claim”: Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20 at [80].

Counsel for the plaintiff submitted that as the Court had a discretion to grant a stay, and for the reasons earlier outlined in [109] above, the circumstances did not warrant the Court’s exercise of discretion to grant the stay, the Motion should be dismissed.

The use of the term “discretion” in the submission about granting a stay, is open to misunderstanding. Whilst it is clear that the Court’s power to grant a stay is not mandatory and, in that sense, can be described as discretionary, to me that does not mean that the Court has a discretion to refuse to grant a permanent stay where it is satisfied that any hearing of the proceedings would be manifestly unfair, and that the Trustees could not have a fair trial. That is because to the extent that there cannot be a fair trial, the proceedings are an abuse of process and do not serve the interests of the administration of justice.

Even if the grant of a stay was discretionary in the true sense of that word, the matters advanced by the plaintiff’s counsel would not tell against the exercise of the discretion. The fact that there may be material available to the Trustees which may be capable of informing them that they should conclude by inference that Mr Kitchingman engaged in the sexual abuse against the plaintiff is not a reason to refuse the relief. Rather, it is a circumstance which emphasises the unfairness of the proceedings i.e., that the Trustees would have to infer, based on material, that Mr Kitchingman engaged in the criminal conduct of sexually abusing the plaintiff. That is not something which the Trustees ought be required to do by indirect process of inference from some material other than that which deals with the facts of this case. Nor is it to the point that the Trustees were able to admit some of the facts and circumstances surrounding the pleading.

Nor is the exercise of discretion, assuming one exists in the traditional sense, to be influenced by the knowledge of the Bishop of Grafton that Mr Kitchingman may have posed a risk to young people based upon the conviction in 1968 of indecent assault. I do not accept that the Trustees were obliged to engage in any further investigation of the conduct of Mr Kitchingman in 2014, and that their failure to do so is a matter relevant to the exercise of the discretion. The fact is, as I have determined, these proceedings would constitute an abuse of process in that the Trustees cannot have a fair trial of the plaintiff’s allegation and, accordingly, the interests of the administration of justice are served by making an order for the permanent stay of the claim against them.

I make the following orders: