O’Callaghan v Trustees of the Marist Brothers

The plaintiff commenced these proceedings with the filing of a statement of claim on 6 June 2022. In broad compass the plaintiff alleges that in or around 1963, when he was a boarder at St Francis, a school operated by the defendant, he was sexually abused by the school principal, Brother Calixtus. The plaintiff was then 12 years of age.

The allegations are of historical sexual abuse and are of the type considered by the Royal Commission into Institutional Responses to Child Sexual Abuse.

On 15 September 2022, the defendant filed a notice of motion seeking an order that the proceedings be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW). An alternative order was proposed under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). The alternative order was acknowledged to rise or fall with the primary application.

The motion is supported by affidavits of Ms Lucinda Gunning dated 15 September 2022 and 14 April 2023 respectively.

The reasons for the stay may be summarised as follows:

The plaintiff responded on a number of levels. He says there has not been a “full and frank disclosure of all material”, the investigations carried out by the defendant have been “perfunctory”, the defendant has failed to distinguish between the admissibility of evidence and the weight of evidence and that the facts of this case can be distinguished from the authorities relied upon by the defendant, primarily because Brother Calixtus was alive when the allegations were made.

The school principal, prior to being ordained with the title Brother Calixtus, was known as Mr Kevin Francis Hogan. Following his ordination Brother Calixtus, has been subject to 19 other claims of sexual abuse. Three allegations refer to the period between 1948 and 1958. The balance concern the period from 1964 to 1972.

The earliest date at which the defendant was notified of allegations against Brother Calixtus, but not relating to this plaintiff, was in 2003. The first ‘suggestion’ of an allegation in respect of this plaintiff was made in an email from the plaintiff’s brother to a Brother Michael Flanagan on 28 May 2019. As will be seen below, the terms of this email assumed a vastly different significance in the submissions of the respective parties.

One of the consequences of the Royal Commission was the removal of the limitation period relating to historical sexual abuse. It is obvious that this legislative change intended that historical sexual abuse cases would be commenced and heard many years after the alleged abuse.

The defendant has referred me to a number of cases in which a permanent stay has been granted. Each case is of course to be decided on its own facts. This point was made by the Court of Appeal in Smith v The Council of Trinity Grammar School [2022] NSWCA 93, at [26]:

I also note that leave was granted for an appeal to the High Court in Trustees of the Roman Catholic Church for the Dioceses of Lismore v GLJ [2022] NSWCA 78 (GLJ). The primary point made in the application for special leave was stated by senior counsel in this way:

The point being made by Mr Herzfeld SC was that the lifting of the limitation period must carry with it a consequence which might impact upon the previously settled rules concerning the existence of manifest unfairness.

In GLJ at [95], Mitchelmore JA re-stated the principles for a permanent stay which had been set out in Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 at [71]:

The principles just set out, and their consideration in the light of the lifting of the limitation period were discussed in GLJ, at [116] and [117]:

When the cases referred to by the defendant are analysed some common themes emerge:

All of these considerations apparently apply in the present case. Prima facie therefore, this case should follow the same path as those mentioned above. However, as stated above, each case is to be decided on its own facts. Returning to the requirements derived from Moubarak and GLJ, the second requirement is that a permanent stay should only be granted in exceptional circumstances.

The plaintiff referred to the exceptional circumstances condition as being an exceptional remedy. There must be an almost absolute finding that the defendant could not have a fair trial.

The plaintiff submitted that implicit in the necessary inquiry is whether or not there had been an “open disclosure of everything at its disposal” by the defendant. This is, I think, the distinguishing feature of this case from the authorities to which I was referred to by the defendant.

The plaintiff said this was not the case here and primarily pointed to the extensive claims for the privilege that had been made by the defendant. Exhibit B contains a list of the privileged documents. It can be seen that each document is preceded by a name. These names are the names of 15 of the other 19 persons who have complained about abuse by Brother Calixtus. 15 of the claims for privilege were later withdrawn, leaving 54 claims as at the date of the hearing of the motion.

The plaintiff submitted that a party seeking the exceptional remedy of a permanent stay needed to fully disclose all the information it had available. The subjects of the claims for privilege were all persons who had made allegations about Brother Calixtus. It is also apparent from the titles of certain of the documents (eg “Grey – Deed of Release and Settlement”) that some of the claims had been resolved.

The involvement of Brother Calixtus in these other matters could well contain material relevant to the present matter. This was not a case, submitted the plaintiff, like GLJ, where the previous known abuse by the person involved was so different to the allegations in the case as to have no relevance.

The plaintiff referred me to the decision of the New South Wales Court of Appeal in Salvation Army v Rundle [2008] NSWCA 347 where McColl JA said, at [103]:

The plaintiff submitted that abuse by the same teacher in similar school circumstances could be highly relevant. I agree. In my view there has been a deliberate failure to disclose relevant evidence on the part of the defendant. This is not to say that the claims for privilege, applying a legal test for privilege, would not be valid. It is, however, saying that if the defendant wishes to benefit from the very special remedy of a permanent stay then it must have first disclosed all of its relevant knowledge, even if that knowledge was otherwise protected by privilege.

The defendant’s response to this point was that if the plaintiff wished to know more about the circumstances of the other claims against Brother Calixtus it could find them in assorted documents that had been produced on subpoena. This response ignores the heavy onus upon a moving party to obtain a permanent stay (see, for example Patsantzopoulos by his tutor Naumov v Burrows [2023] NSWCA 79 at [32]).

It cannot be enough to claim privilege over documents relating to other, possibly, if not probably, similar types of claims on the basis that the plaintiff can find out certain facts from documents produced under subpoena. Whatever the plaintiff does find out from such documents, he could never know whether there was other material in the privileged documents.

I am of the view therefore, that the defendant’s failure to disclose all matters known to it concerning Brother Calixtus is fatal to its claim for a permanent stay.

The next important argument put forward by the plaintiff was that the email from the plaintiff’s brother was received by the defendant on 28 May 2019. Brother Calixtus was still alive at this time. No response was sought from him about the email. The defendant submitted that the terms of the email did not generate any need to communicate with Brother Calixtus. I found this submission to be extraordinary.

It is correct that the email may have referred to the wrong school and may have sought “facts that will assist Brian to piece together this period of his life”. But the email also refers to the plaintiff commencing “to talk of suffering a period of sexual abuse at the hands of Br Callixtus”. How this comment does not require that questions should be asked of Brother Calixtus is completely beyond me.

Further, the email, whatever mistakes it might contain, is a request for information, no doubt to correct any factual errors. Surely the provision of information encompasses the response of Brother Calixtus.

Following receipt of the email from Mr Vic O’Callaghan, Brother Flanagan forwarded it to the provincial (a senior church official), to Ms Kathleen Fleming, to Mr John Robinson and to Mr Stephen Dwyer. Ms Fleming wrote to Mr Vic O’Callaghan on 1 July 2019 offering assistance to the plaintiff.

Ms Fleming’s email says that Mr O’Callaghan’s email address was provided by the “Marist Professional Standards Office”. There is no information from this office as to what enquiries, if any were conducted by it. There is also no information as to any actions taken by the provincial, Mr Robinson or Mr Dwyer. Presumably the email was forwarded to them for a reason.

The defendant submitted that even if enquiries had been made of Brother Calixtus, they are unlikely to have been fruitful because he was, in May 2019, suffering from a cognitive deficit. This information is derived from the medical report of Dr Cox, a general practitioner, dated 10 September 2015 and the report of Dr Culver, a general physician and geriatrician, dated 8 March 2016 (pages 220 and 222 of the Court Book).

The parties accepted that these reports related to the capacity of Brother Calixtus to stand trial in a criminal proceeding. The reports came to light, to both parties, through the subpoena process. There is no suggestion that in May 2019 the defendant was aware of Brother Calixtus’ dementia.

It is also relevant to note that the reports do not exclude the provision of information by Brother Calixtus. For example Dr Culver says:

While Dr Culver certainly provides little prospect of Brother Calixtus being able to defend himself in a criminal trial, his views do not exclude the possibility of some information being obtained upon polite enquiry. The difference between criminal and civil proceedings was discussed by Leeming JA in Patsantzopoulos at [36]:

The defendant’s reaction to the email of 28 May 2019, however, was not to say that no questions were asked of Brother Calixtus because he was unwell, but rather that there was no need to ask any questions. I have already rejected this proposition above.

Another, perhaps less strong, point made by the plaintiff was that notwithstanding the service of the statement of claim on 6 June 2022, the defendant had yet to file a defence. Normally a defence should be filed within 28 days of service of the statement of claim, Uniform Civil Procedure Rules 2005 (NSW), r 14.3. The plaintiff accordingly does not even know if the allegations of abuse are to be disputed. This perhaps suggested some knowledge on the part of the defendant which was causing it to delay the filing of a defence. If there was a genuine lack of knowledge about whether or not the abuse had occurred, a defence neither admitting nor denying the allegations could have been filed.

There are two other points I would like to make which reinforce my decision, but I stress are not determinative of it. In other words, my decision would have been the same without the following two points.

What emerges from the cases I was referred to, with all their similarities, is that the present case is far from exceptional. As each ‘new’ case falls for consideration it becomes apparent that the exceptional circumstances are becoming less exceptional. Firstly, the commonality of the facts, and secondly, the spread of these cases across Australian jurisdictions, emphasises the unexceptional nature of this type of case. This approach is, I think, consistent with the interpretation of exceptional circumstances stated by the Court of Appeal of England and Wales in R v Kelly (Edward) [2000] 1 QB 198, at [208]:

The number of cases both now coming before the courts and still emerging must be close to a circumstance that is now “regularly, or routinely, or normally encountered.”

This view, I think, is consistent with the removal of the limitation period which must have envisaged the revival of historic sexual abuse cases in circumstances where the alleged abusers may no longer be able to respond to the allegations, let alone be alive. Just as the Royal Commission revealed that the abuse of children in institutions, like schools, was far from exceptional, then the current pursuit of the abusers must be equally unexceptional.

Exceptional circumstances are sometimes referred to as “out of the ordinary run of cases” (for example Yu v Cao [2015] NSWCA 276). Could it not be said that the removal of the limitation period was a pathway for cases such as the present to become part of the normal run of cases?

In this case, where there are 19 other allegations of abuse against Brother Calixtus, it would seem entirely contrary to the intent of the legislature, which is responding to the Royal Commission, to not contemplate actions against the alleged abuser.

Invariably the victims of these cases were children, and the alleged abusers were adults. If the relevant events occurred, say 30 or 40 years ago, and the alleged abuser was then, say 40 or 50 years of age, there is a very good chance that the alleged abuser will have, by now, passed away or be so unwell as to be unable to deal with the allegations.

I note that according to the findings of the Royal Commission the average period before a victim discloses childhood abuse is 23.9 years (Australian Government, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report: Volume 4, Identifying and disclosing child sexual abuse (2017) at 9). No doubt it is an even longer period before the person is capable of instructing a lawyer sufficiently for a claim to be made.

I therefore consider that there may not be exceptional circumstances in this matter.

The second point concerns the nature of the defendant’s position in the litigation. This is not a case such as an insurer of an alleged tortfeasor asserting that it is unable to investigate allegations because its insured has died or the events occurred many years earlier and it is impossible to investigate them.

To the contrary, the defendant in this case, even if it is a self-insurer, is the tortfeasor itself and is not solely sued on a vicarious basis. The allegations in the statement of claim extend to acts of negligence on behalf of the defendant going beyond the actions of Brother Calixtus. The statement of claim specifically distinguishes between claims against the defendant itself and claims “in vicarious liability”.

I have referred above to the overall number of allegations concerning Brother Calixtus. Some of them predated the allegations concerning this plaintiff. The statement of claim alleges negligence on the part of the defendant in failing to have regard to the general risk of sexual abuse of students. The defendant is being sued not only because of the acts of Brother Calixtus but also because of the environment which allowed him to act as he allegedly did. In other words there was a failure on the part of the defendant to investigate claims generally, the result of which might have prevented harm to the plaintiff.

The final matter I would like to deal with concerns the submissions of the learned senior counsel for the defendant concerning deficiencies in the plaintiff’s case. For example, Mr Villa SC, pointed out that the plaintiff alleged he was a boarder when the abuse occurred but all investigations to date seem to contradict that the plaintiff was a boarder. Another example is that the timing of the abuse has fluctuated. The defendant submitted that there were serious doubts about the reliability of the plaintiff’s account.

In GLJ, Brereton JA pointed out that there could not be a fair trial “regardless of the veracity and credibility of GLJ” (at [4]).

The other side of his Honour’s observation is that if the plaintiff is unreliable that will benefit the defendant’s case, or at least hamper the plaintiff’s case. The plaintiff as an unreliable historian gives no weight to the defendant’s assertion that it cannot have a fair trial.

In relation to costs, the defendant’s application was to terminate the proceeding with immediate effect. I regard this as different to an application relating to the continuation to the proceedings. In other words, it is a stand-alone application. Accordingly, the defendant, having lost, should pay the plaintiff’s cost.

I make the following orders: