KQG v Trustees of the Marist Brothers

1. [1]

   HER HONOUR: By amended notice of motion filed 14 June 2018, the defendant seeks to strike out paragraphs 51, 55, 62(j), (l), (n) and (dd), 88 and 89 of the plaintiff’s further amended statement of claim filed 15 May 2018 (“FASC”). Counsel for the plaintiff has agreed to replead paragraphs 42 and 43 of the FASC.

2. [2]

   The plaintiff is KQG. These proceedings relate to the alleged sexual, physical and emotional abuse of the plaintiff while he was a student at Marist College Penshurst (“the school”) during 1976. His alleged abusers are Brother Norman Keyes, a Marist Brother and teacher at the school and Robert “Dolly” Dunn, a lay teacher at the school. The first defendant is Trustees of the Marist Brothers (“the Marist Brothers”) a statutory corporation.

3. [3]

   The second defendant is Brother Jeffrey Crowe as the executor of the estate of the late Brother Charles Howard. The third to ninth defendants are either members of the Provincial Council of the Marist Brothers or the executors of the estates of deceased members of the Provincial Council. The tenth defendant is the former principal of the school and a Marist Brother.

4. [4]

   The second to tenth defendants have nominated themselves, through their solicitors, as the proper defendants to this claim as representatives of the Marist Brothers and as being responsible for the school. They have accepted responsibility for the liabilities of the Marist Brothers, including their predecessors, members, servants and agents arising out of the care, management and control of Marist Brothers schools, which includes Penshurst.

5. [5]

   The current FASC does not plead actual knowledge by the defendants of prior sexual abuse by Brother Keyes or Dolly Dunn. It pleads that the defendants were either aware or ought to have been aware of instances of child abuse occurring within their schools, and at the school, that gave rise to the risk of abuse occurring at the school, that they knew or ought to have known that abuse of the type suffered by the plaintiff had potential to cause him psychiatric injury and that the discharge of the duty of care required the defendants to have in place any system, policies, or procedures, to prevent abuse.

6. [6]

   The plaintiff relied upon an affidavit of Stephen Dixon dated 24 April 2018. The defendants relied upon two affidavits of Josie Lyn Dempster dated 16 March 2018 and 13 June 2018.

The relevant Uniform Civil Procedure Rules (“UCPR”)

1. [7]

   The defendants relied upon UCPR 14.14 and 14.28. The plaintiff submitted that the FASC should not be struck out as it does not offend either UCPR 14.14 or 14.28.

2. [8]

   UCPR 14.28(1) and (2) read that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court. The court may and has received evidence in this hearing of an application for an order under subrule (1).

3. [9]

   In earlier decisions of S1 v Trustees of the Marist Brothers [2016] NSWSC 970 (“S1”) at [7] and Miller v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2018] NSWSC 24 at [6] (“Miller”), I set out the function of pleadings. It is not necessary to refer to them again here. Other than to say that the overall 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; 169 CLR 279 at 286-287 and 302-303.

Overview of the pleading in the FASC

1. [10]

   From 1969 to 1976, Brother Norman Keyes was a member of the Marist Brother and a teacher at the school. (FASC [29]). From 1970 to 1976, Robert “Dolly” Dunn was a teacher at the school. (FASC [30]). From 1976 to 1981, the plaintiff was a child and a student at the school known as Marist College Penshurst (“the school”). (FASC [31]).

2. [11]

   In about 1976 and while the plaintiff was in Year 5, Brother Keyes and Dolly Dunn sexually, physically and emotionally abused the plaintiff. The particulars of the sexual, physical and emotional abuse are provided. (FASC [32]).

3. [12]

   The plaintiff claims that he suffered physical pain, emotional anguish, humiliation and distress, psychiatric injury, chronic depressive disorder with anxiety and trauma related symptoms.

4. [13]

   The plaintiff claims damages for trespass to the plaintiff’s person including exemplary and aggravated damages. (FASC [78] to [89]).

The relevant law

1. [14]

   In S1 and Miller, I also briefly set out the duty of care owed by a school to a pupil. It is not necessary to do so again here.

2. [15]

   Briefly, the liability of a school authority for injury suffered by a pupil is discussed in The Commonwealth v Introvigne [1982] HCA 40; 150 CLR 258 (“Introvigne”) at 269 and 271, Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 (“Dederer”) at [18]; and the provisions of the Civil Liability Act 2002 (NSW) in particular ss 5B and 5C.

3. [16]

   Senior counsel for the defendants referred to S1, a strike out application relating to sexual abuse of a student at the same school run by the Trustees of the Marist Brothers. In paragraphs [24] and [36] I stated:

4. [17]

   Before I refer to the disputed paragraphs in the FASC, it is necessary to refer to some portions of the Royal Commission’s inquiry into Institutional Responses to Child Sexual Abuse, “Report of Case Study No 13: The response of the Marist Brothers to allegations of child sexual abuse against Brothers Kostka Chute and Gregory Sutton”. (“the report”).

The report

1. [18]

   The report sets out the structure of the Marist Brothers. The Marist Brothers is a Catholic order established for the education and “Christian formation” of young people. The Provincial and the Provincial Council had responsibility for “schools, institutions and ministries operated by the Marist Brothers”. The Provincial had authority over members of the Marist Brothers, was responsible for handling allegations of complaints of sexual abuse and was responsible for determining the action to be taken against the accused.

2. [19]

   The Marist Brothers maintained disciplinary process under Canon Law set out in, Vademecum - Administrative Guide for the Use of Provincials and the Councillors. Those procedures were used from time to time to dismiss Brothers for misconduct including for “misconduct with boys” and “seriously improper conduct with pupils” as far back as 1950 and 1953.

3. [20]

   The Executive summary under the heading “Governance” in the report states:

4. [21]

   Counsel for the plaintiff referred to statements concerning Brother John (Kostka) Chute contained in the report. They are:

The disputed paragraphs of the FASC

1. [22]

   The plaintiff submitted that the defendants in these proceedings, including those mentioned in the FASC at [27], have accepted responsibility for the liabilities of the Marist Brothers and were not only responsible for the school where the plaintiff was abused, they also had responsibilities for all Marist Brothers schools. Further, they had responsibilities for the supervision and control of members of the Marist Brothers including for managing and responding to complaints of child sexual abuse by Marist Brothers.

2. [23]

   The report discloses that in 1962 Brother Chute admitted to Brothers Walter Cranney and Des Phillips that he had sexually abused a child at St Anne’s primary school in Bondi. Brother Phillips did not inform the Provincial of Brother Chute’s admission as required by the Marist Brother policy on reporting at the time. That failure meant that the Provincial at the time could take no action to protect other children from Brother Chute’s sexually abusive behaviour. No note was made of the complaint and there was no follow up with Brother Chute.

3. [24]

   The report also records that in 1969 the Provincial council had knowledge that Brother Chute had inappropriately sexually touched a child at St Josephs school Lismore and given a canonical warning. Nevertheless, in the same year he was transferred to Marist College primary school at Penshurst this time as principal. Further, Catholic Church Insurance concluded that there was ‘significant evidence’ from Brother Chute that three prior Provincials, Brothers Duffy, Weldon and Howard, had knowledge that Brother Chute had behaved in a sexually inappropriate way with young boys and had failed to act decisively to address the risk of this behaviour continuing.

4. [25]

   Counsel for the defendants submitted that the way paragraphs 42 and 43 were pleaded was completely contrary to s 56 of the Civil Procedure Act 2005 (NSW), as in their present form they would require the judge in this case to deal with a multitude of issues concerning the knowledge of the defendants of allegations of abuse in the Marist Brothers system. This could be by any teacher or religious brother at any school at any time prior to 1976. All of this is sought to be justified as being to present material to the court which is relevant to the content of the duty of care owed to the plaintiff in this case.

5. [26]

   Putting the argument in this way, the plaintiff is regurgitating an argument which was unsuccessfully pursued in S1. Counsel for the defendants submitted that it is apparent from S1 that the plaintiff in his pleadings sought to rely upon and introduce allegations that the Marist Brother defendants knew or ought to have known of historical sexual abuse across the Marist Brothers School network as described in S1 at [24]; “In other words, paragraph 9 sets out what occurred at other Marist Brothers school across Australia by teachers and/or priests over a period of 20 years from 1960 to 1980.”

6. [27]

   In S1, I concluded that if the school principal, the trustees or other teachers at the school were aware of prior sexual abuse at the school and that abuse occurred prior to the abuse of the plaintiff, it would be relevant to the scope of the duty of care. However, I found that sexual abuse of a pupil at another school from the 1960s onwards did not inform the scope of the duty of care and the relevant paragraphs of that statement of claim were struck out as being far too wide and embarrassing.

7. [28]

   Counsel for the defendants says that S1 at [37] indicated that the behaviour of teachers or priests at other Marist Brothers schools across Australia, whether before or after the plaintiff’s attendance at the school, did not fall within the scope of the duty of care. Other offending paragraphs of a similar character were struck out and the whole of the pleading was struck out, giving the plaintiff leave to replead in an appropriate form.

8. [29]

   In this present case, the defendants accept that, consistent with the ratio in S1, and the subsequent decision of Miller at [42], the plaintiff could appropriately plead that, prior to the plaintiff’s abuse, the defendants by the knowledge of the second defendant and his pre­decessors Brother Quentin Duffy and Brother Othmar Weldon and Principal Brother Phillip Phillips, knew that there had been previous instances of abuse by a Marist Brother who taught at the school, Brother Chute.

9. [30]

   Similarly, the defendant submitted that paragraph 43 of the FASC could appropriately be pleaded as that the defendants ought to have known that there had been previous instances of teachers including Marist Brothers sexually abusing children at the school, including Brother Chute.

10. [31]

    By putting the case in that way, the plaintiff will be able to seek to rely upon the evidence before the Royal Commission concerning the knowledge of the defendants of the complaints concerning Brother Chute. Additionally, the plaintiff would also be entitled to seek discovery of knowledge of the defendants of any complaints or allegations received or known by the defendants in, or prior to 1976, of sexual abuse of students at the school by teachers or brothers.

11. [32]

    The re-formulated pleading in those terms would enable the plaintiff to prove and rely upon the historical knowledge of Brother Chute, which it has particularised, and would also be able to ascertain by way of discovery whether or not there were complaints or allegations of sexual abuse of students at the school before 1976, a matter which the defendants would accept would be relevant to the case sought to be made against them.

12. [33]

    During oral submissions counsel for the plaintiff agreed to amended paragraphs 42 and 43 of the FASC to plead that the second to ninth defendants and some predecessors (the ones listed in the current FASC) knew that there had been previous instances of abuse by Brother Chute at the school and at other Marist Brothers schools. Paragraph [43] will be amended to say that the defendants ought to have known that there had been previous instances of abuse by Brother Chute at the school and at other Marist Brothers schools. The current paragraphs 42 and 43 of the FASC are struck out and are to be repleaded.

13. [34]

    The disputed paragraphs of the FASC are now 51, 55, 88 and 89. If these paragraphs are struck out, it follows that paragraphs 62(j), (l), (n) and (dd) should also be struck out. I shall deal with them in turn.

14. [35]

    Paragraph 51 pleads:

15. [36]

    Paragraph 55 pleads:

16. [37]

    Counsel for the defendants submitted that there are a range of problems with paragraphs 51 and 55 as outlined in their earlier submissions in relation to paragraphs 42 and 43. It first refers to a practice by the defendants, without naming any of them individually. It also asserts a practice of not keeping written records about the reason for the transfer of Marist Brothers, without identifying the Marist Brother involved, and the circumstances of the transfer relied upon. Third, it refers to knowledge of allegations or known instances of abuse by Marist Brothers which are unspecific as to date with respect to the relevant Marist Brother, and the circumstances of the abuse.

The plaintiff’s submissions

1. [38]

   Counsel for the plaintiff submitted the defendants, including those for whom they have accepted responsibility, were not only responsible for the school where the plaintiff was abused, but they also had responsibilities for all Marist Brothers schools. Further, they had responsibilities for the supervision and control of members of the Marist Brothers including managing and responding to complaints of child sexual abuse by Marist Brothers.

2. [39]

   Also, the extracts of the report state that while Brother Charles Howard (the second defendant) was the Provincial between 1972 and 1976 he knew that Brother Chute had sexually abused a child at Penshurst. The complaint was made shortly after the abuse, in about 1972, or shortly thereafter. Brother Chute spoke to Brother Howard about the abuse and fully admitted his behaviour. Brother Howard counselled him about it. Brother Howard sent Brother Chute for treatment to the United States in 1976-1977.

3. [40]

   In 1972, if not before, Brother Howard as the Provincial of the Marist Brothers and responsible for the school, had put in place a system of prevention when he found out that Brother Chute was abusing children at the School, it is a reasonable inference that the plaintiff’s abuse would have been prevented.

4. [41]

   Brother Allman Dwyer, the ninth defendant, and arguably Brother Howard, were present at a Provincial Council meeting where Brother Chute had been given a canonical warning for inappropriately touching children at a Marist Brothers school in Lismore. Brother Dwyer was involved in the transfer of Brother Chute to Marist Brothers Penshurst from a Marist Brothers school in Lismore in full knowledge that he had admitted to sexually abusing children. Brother Chute taught at the school until the end of 1972.

5. [42]

   In 1959, Brother Ansalom knew that Brother Chute had abused a child. In 1962, Brother Des Phillips knew that Brother Chute had admitted to indecently assaulting a child. In 1959 and 1962, the then Provincial of the Marist Brothers, Brother Quentin Duffy, knew that Brother Chute had sexually abused children.

6. [43]

   Concerning the knowledge of the other defendants, as members of the Marist Brothers Council, it is a reasonable inference that they knew because of their role in the management of the Marist Brothers and their schools. It needs to be kept in mind that there has not yet been discovery or the issue of notices to produce. No defence has been filed (and it does not have to be) so the plaintiff does not yet know whether he will be put to proof on the allegation that the defendants were aware or ought to have been aware of instances of child abuse occurring and consequently posed a risk of harm to children at the school being abused.

7. [44]

   If proved, the fact that at least two of the defendants including the Provincial, Brother Howard, were aware that a person with a known history of abusing children going back to 1959, was teaching at the school only four years before the plaintiff’s abuse, and that the abuser was known to have abused children at the school and other schools, is capable of informing the content of the duty of care owed to the plaintiff.

8. [45]

   The plaintiff submitted that concerning relevance of abuse generally occurring at Marist Brothers schools, it needs to be kept in mind that these defendants were not only responsible for the school, they were also responsible for all other Marist Brothers schools and responsible for investigating and disciplining all Marist Brothers who had committed abuse. The knowledge that they gained about the risks and dangers of abuse at all schools and in the course of all their operations and supervision of Marist Brothers is capable of informing what risks they were aware of, or ought to have been aware of, and the content of the duty of care owed to the plaintiff.

9. [46]

   The knowledge of the risks of harm from child abuse that the Marist Brothers obtained while they were disciplining or supervising Marist Brothers, managing the school or any other Marist Brothers school cannot be ignored in determining how they ought to discharge their duty of care to children under their care.

Conclusion

1. [47]

   The Marist Brothers have operated schools in Australia since 1872. Since 1972, before the plaintiff’s abuse, the Marist Brothers operated 21 schools in their own right, including 12 boarding schools and administered 70 schools on behalf of parishes and dioceses where their members were placed to teach. Their schools were situated in New South Wales, Queensland and the Australian Capital Territory.

2. [48]

   The way the plaintiff’s submissions read, the focus is upon actions of Brother Chute when he was at other Marist Brothers schools, both before he was transferred to the school and at the school. This is of narrower focus than what is pleaded in paragraphs 51 and 55. It is my view that the plaintiff’s current argument is similar to S1.

3. [49]

   In S1, I concluded that if the school principal, the trustees or other teachers at the school were aware of prior sexual abuse at the school and that abuse occurred prior to the abuse of the plaintiff, it would be relevant to the scope of the duty of care. However, I found that sexual abuse of a pupil at another school from the 1960s onwards did not inform the scope of the duty of care and the relevant paragraphs of that statement of claim were struck out as being far too wide and embarrassing. Further, I concluded in S1 at [37] that the behaviour of teachers or priests at other Marist Brothers schools across Australia, whether before or after the plaintiff’s attendance at the school, did not fall within the scope of the duty of care.

4. [50]

   Paragraphs 51 and 55 as currently pleaded should be struck out as they are too wide and embarrassing. They refer to the whole of the Marist Brothers schools’ practices of firstly, not keeping written records of sexual abuse by a Marist Brother (not keeping records); and secondly, not reporting to the Police or other external authority allegations of childhood sexual abuse or known instances of sexual abuse (failure to report).

5. [51]

   To investigate the lack of records and failure to report over the whole of the Marist Brothers schools is an onerous and expensive task that does not go to the real issues in dispute. These paragraphs should be struck out and repleaded in a narrower form confined to the school, including Brother Chute, Dolly Dunn and Brother Keyes. If after discovery, the plaintiff’s legal representatives become aware of further prior incidents of sexual abuse at the school or at other Marist Brothers schools or by teachers or priests, they can be included in a second further amended statement of claim. (“2FASC”).

Paragraphs 88 and 89

1. [52]

   Paragraphs 88 and 89 plead:

2. [53]

   The Trustees submitted that each of these paragraphs have the same deficiencies as identified above in relation to paragraphs 42 and 43.

3. [54]

   However, during the hearing in oral submissions, counsel for the plaintiff agreed to limit paragraphs 88 and 89 to allegations concerning Brother Chute and if other material becomes available, the plaintiff will further amend the 2FASC (T26.47-48). The current paragraphs 88 and 89 will be struck out and repleaded.

4. [55]

   Paragraph 88 will now read “At the time that Brother Norman Keyes and Robert “Dolly” Dunn abused the plaintiff, the Defendants by themselves and by their servants and/or agents knew that there had been inappropriate conduct, sexual abuse and sexual crimes committed by Brother Chute but were knowingly or recklessly indifferent to the welfare of the children at the school and their parents to ensure the safety of children in their case.”

5. [56]

   Likewise paragraph 89 will now read “On becoming aware of instances of inappropriate sexual conduct and sexual abuse of children by Brother Chute at the school, the Defendants by themselves and by their servants and/or agents knowingly or recklessly engaged in a course of conduct intended to cover up childhood sexual abuse by not reporting the abuse to the Police or other appropriate authority and not keeping written records of known instances of childhood sexual abuse of children at the school.”

6. [57]

   Paragraph 62(j), (l), (n) and (dd) read:

7. [58]

   For the same reasons given earlier these paragraphs are too wide and should be struck out and repleaded in the narrower form as set out earlier.

8. [59]

   As with the other disputed paragraphs, these need to be repleaded to narrow the claim to Brother Chute. Whether or not this amended pleading will be ultimately successful at trial is not a matter for me to canvass.

9. [60]

   The result is that paragraphs 42, 43, 51, 55, 62(j), (l), (n) and (dd), 88 and 89 are struck out.

10. [61]

    The result is that the plaintiff is to forward a second further amended statement of claim to the defendant by 25 July 2018.

Costs

1. [62]

   There has been an argument as to costs. The defendants are seeking their costs on the basis that there had been two prior versions of the statement of claim and the onus is not upon the defendants to inform the plaintiff’s legal representatives as to how the plaintiff’s case should be pleaded. Senior counsel for the defendants submitted that in terms of managing these cases, the best way to do it is at the pleading stage, to confine the issues to the real issues in dispute. The defendant submitted that there has been an incredibly wide pleading which has been chipped away at as a result of three different iterations over a whole course of correspondence. Senior counsel for the defendants further submitted that so far as costs are concerned, it would not be a just outcome for costs to be costs in the cause, because the costs of getting these pleadings in order and the necessity to file a notice of motion are far greater than would ordinarily have been incurred had the plaintiff pleaded a case narrowly as he should have done in the first place. In these circumstances, costs would not have been incurred.

2. [63]

   Counsel for the plaintiff submitted that it was not until he received submissions in reply from the defendants which conceded that the plaintiff could plead knowledge regarding Brother Chute going back to the 1960s as being a relevant factor to this case. Accordingly, the plaintiff submits that at every stage up until the submissions in reply, the defendants insisted that the plaintiff could only plead anything that was known during the period that the plaintiff was at the school and knowledge about the abusers. In these circumstances, the plaintiff submitted that there should be no order as to costs unless the plaintiff succeeds.

3. [64]

   Costs are discretionary. In the exercise of my discretion, costs should be reserved. That is the same costs order that has been made in S1 and Miller. The costs will then abide the outcome in the proceedings.