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Smith v The Council of Trinity Grammar School [2021] NSWSC 1592 (8 December 2021)

Last Updated: 8 December 2021

Case Name:	Smith v The Council of Trinity Grammar School
Medium Neutral Citation:	[2021] NSWSC 1592
Hearing Date(s):	3 November 2021
Date of Orders:	8 December 2021
Decision Date:	8 December 2021
Jurisdiction:	Common Law
Before:	Harrison AsJ
Decision:	The Court orders: (1) A permanent stay of these proceedings be granted. (2) The plaintiff is to pay the defendant’s costs.
Catchwords:	CIVIL PROCEDURE – Permanent stay of proceedings – abuse of process – Where delay has resulted in relevant evidence becoming unavailable or impoverished – Where defendant is unable to give evidence – Whether delay results in inability to have a fair trial on balance of probabilities – Stay granted
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 67, 156 Limitation Act 1969 (NSW), s 6A Uniform Civil Procedure Rules 2005 (NSW), r 2.1
Cases Cited:	Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Connellan v Murphy [2017] VSCA 116 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore  [2021] NSWSC 1204  GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [ 2021] NSWSC 1204  Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 Moubarak bht Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218 Newcastle City Council v Batistatos [2006] HCA 27 Prince Alfred College Incorporated v ADC [2016] HCA 37; (2016) 258 CLR 134 State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511
Texts Cited:	Justice Peter McClellan AM, Royal Commission into Institutional Responses to Child Sexual Abuse Report (December 2017).
Category:	Procedural rulings
Parties:	Andrew Smith (Plaintiff) The Council of Trinity Grammar School (Defendant)
Representation:	Counsel: Mr J Maconachie QC (Plaintiff) Mr G Bateman (Plaintiff) Mr N Hutley SC (Defendant) Mr J Sleight (Defendant) Solicitors: Robert Bryden Lawyers (Plaintiff) Thompson Cooper Lawyers (Defendant)
File Number(s):	2021/45870
Publication Restriction:	Nil

JUDGMENT

1 HER HONOUR: This judgment involves a notice of motion seeking that the proceedings be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (“CPA”) and r 2.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

2 The plaintiff is Andrew Smith. The defendant is the Council of Trinity Grammar School. The parties relied on a joint court book (“CB”) and a supplementary court book (“SCB”).

3 By statement of claim filed on 17 February 2021, the plaintiff commenced proceedings against the defendant, seeking damages for personal injury in respect of sexual abuse that the plaintiff alleged he suffered in 1981 while in Year 6 at Trinity Grammar Preparatory School (“the School”) operated by the defendant.

The pleading in the statement of claim

4 On 4 August 2021, the plaintiff filed an Amended Statement of Claim (ASOC) which relevantly reads (CB3):

“1. The Plaintiff was born on XXXX 1969.
2. The Plaintiff commenced attending Trinity Grammar Prep School ("the School") at Strathfield in 1981 in Year 6, aged 11 years.
3. At all material times the School was conducted by the Defendant.
4. At all material times the Reverend Sandars was Master in Charge of the School, having been appointed by the Defendant.
5. During the year 1981 and while a student at the School the Plaintiff was sexually assaulted by the Reverend Sandars”.

Breach of duty

5 The ASOC pleaded that the defendant was both vicariously liable for the assaults and that it owed a non-delegable duty to take reasonable care for the plaintiff’s safety and welfare.

6 The sexual assaults are pleaded as commencing in the first month of the plaintiff attending the School in 1981. The plaintiff alleges that he was assaulted in the office of Reverend Sandars on more than 10 occasions which included fondling the plaintiff to a state of sexual arousal (CB3). The plaintiff alleges that the assaults progressed to the Reverend Sandars performing oral sex on the plaintiff (CB4).

7 At [8] ASOC, the plaintiff alleges a breach of that duty in the following terms (CB4):

“[8] The Defendant breached its duty of care to the Plaintiff as follows:

(a) by reason of the failure of the Defendant to take reasonable care for the safety and welfare of the Plaintiff, the Plaintiff was subjected to a risk of harm, namely of being sexually assaulted by the Reverend Sandars.”

8 At [8(b)] ASOC, the plaintiff alleges that the defendant ought to have foreseen the risk of harm and provides the following particulars of constructive knowledge (CB5):

“(b) The risk of harm was foreseeable because it ought to have been known to the Defendant.
Particulars
(i) from time to time Reverend Sandars would seek out the Plaintiff and take him into his office during lunchtime;
(ii) from time to time the Plaintiff was called out of class to go to the office of the Reverend Sandars;
(iii) Reverend Sandars would frequently attend the change room near the swimming pool and talk to the Plaintiff while the Plaintiff was naked;
(iv) Reverend Sandars would stroke the Plaintiff’s hair and ears from time to time during assembly”

9 A failure to take reasonable precautions is articulated at [8(d)] ASOC, and particularised as follows (CB5-6):

“(d) The Defendant failed to take reasonable precautions against the risk of harm to the Plaintiff in:
(a) failing to undertake an assessment of the Reverend Sandars prior to appointing him to a position of authority in the school;
(b) failing to institute and maintain a system of mandatory reporting of suspected causes of sexual assaults upon children of the school;
(c) failing to institute and maintain a program to educate children of the School in relation to their right to be free from sexual abuse at school and to report any sexual abuse;
(d) failing to conduct an audit of student attitudes to teachers on a regular basis;
(e) failing to seek input from students as to the appropriateness of staff;
(f) delegating the care of the Plaintiff to a person who did not take reasonable care for the health and wellbeing of the Plaintiff;
(g) failing to properly supervise the school.”

10 By a letter dated 8 March 2021 from Thompson Cooper Lawyers, the defendant requested from the plaintiff’s solicitors further and better particulars of the original statement of claim. The defendant made the following request addressed to the alleged “Breach of Duty” (CB20):

“(a) how did the defendant fail to undertake a rigorous assessment of the Reverend Sandars?”

11 This elicited the following response by the plaintiff (CB22):

“(a) the Reverend Sandars’ interaction with the Plaintiff went apparently unnoticed and without challenge.”

12 The defendant submitted that no material facts are pleaded (apart from the assaults themselves) as to the Reverend Sandars or events at Trinity on which the alleged precautions would have operated to prevent the risk of harm. For instance, it is not said what the “assessment” of Reverend Sandars would have revealed or that there was a history of inappropriate behaviour to students that would have been revealed by the alleged “audit”.

Vicarious Liability

13 The vicarious liability claim is pleaded as follows (CB6):

“8A Additionally, or alternatively, the Defendant is vicariously liable for the acts of the Reverend Sandars in sexually assaulting the Plaintiff as particularised above and the harm suffered by the Plaintiff.
Particulars of Vicarious Liability
(a) the Defendant and the Reverend Sandars were part of a common enterprise - the education and care of students - and the sexual abuse occurred in the course of that enterprise;
(b) the Reverend Sandars as Master in Charge of the school, stood in the shoes of the Defendant;
(c) the Reverend Sandars’ employment by the school put him in a position of power, trust and intimacy with respect to the Plaintiff;
(d) the Reverend Sandars’ role as Master in Charge placed him in a position of power and intimacy, these are vis-à-vis the Plaintiff such that the apparent performance of that role gave the occasion for sexual assaults;
(e) in the circumstances the sexual assaults were committed in the course of Reverend Sandars’ employment.”

14 The plaintiff has filed an affidavit deposing to the material facts pleaded (CB 681).

The law

15 Section 6A of the Limitation Act 1969 (NSW) (“the Act”) commenced on 17 March 2016. It reads:

“6A No Limitation period for child abuse actions
(1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act.
.........
(6) This section does not limit:

(a) any inherent jurisdiction, implied jurisdiction or statutory jurisdiction of a court, or
(b) any other powers of a court arising or derived from the common law or under any other Act (including Commonwealth Act), rule of court, practice note or practice direction.

Note: For example, this section does not limit a court’s power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible”

16 Section 67 of the CPA reads:

“67 Stay of proceedings
Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.”

17 Section 156 of the CPA reads:

“156 Application
This Part applies to proceedings commenced after the commencement of this section, whether the cause of action arose before or arises after that commencement.”

18 UCPR 2.1 provides:

“2.1 Directions and orders
The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings.”

19 The applicable principles to a grant of permanent stay are well known. They were summarised by Campbell J in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore  [2021] NSWSC 1204  (“GLJ v Lismore”) at [37] referring to Bell P in Moubarak bht Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218 (“Moubarak”) as:

“(i) the onus lies “squarely” on the defendant;
(ii) a permanent stay should only be ordered in exceptional circumstances;
(iii) a permanent stay should be granted when the interests of the administration of justice so demand;
(iv) the categories of case are not closed;
(v) one category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive;
(vi) the continuation of proceedings may be oppressive if that is their objective effect;
(vii) proceedings may be oppressive where their effect is seriously and unfairly burdensome, prejudicial or damaging;
(viii) proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party; and
(ix) proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute.”

20 The prejudice that a delay in bringing proceedings occasions to the ability to have a fair hearing has been subject to examination in many cases: see, Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 (“Taylor”); Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; Connellan v Murphy [2017] VSCA 116 (“Connellan”) at [44]-[47]; Newcastle City Council v Batistatos [2006] HCA 27 (“Batistatos”).

21 The factors that have been identified as giving rise to prejudice include:

(1) the death of witnesses;
(2) the destruction or inability to locate documents;
(3) “the unknown unknowns” i.e. prejudice that is caused by the disappearance of evidence that no one was aware existed: See Taylor at [551]:

“As the United States Supreme Court pointed out in Barker v Wingo, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose... The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”

(4) the general diminution of the body of evidence available; and

(5) the unreliability of evidence that either fades or is subject to reconstruction by being recalled over a number of times particularly where the events provoke an emotional reaction: see the comments of Davis J in The Nominal Defendant v Cordin [2019] NSWCA 85.

22 In an earlier decision which also concerned the School, the Council of Trinity Grammar School v Anderson [2019] NSWCA 292 (“Anderson”), the School proceeded in argument to neither admit nor deny liability. Though both matters concern the same school, the facts in Anderson are slightly different to the present matter. In Anderson, the facts were that the sexual assaults did occur but did not take place on school premises during school hours, having been committed at camps and other places. At [40] onwards, Bathurst CJ (with whom Payne JA and Simpson AJA agreed) stated:

“[40] It is unnecessary in considering this question to go beyond the two most recent decisions of the High Court on these issues, State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 (‘Lepore’) and Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 (‘Prince Alfred College’).
[41] In Lepore a majority of the Court held that the liability of a school authority did not extend to intentional criminal conduct against a pupil by a teacher employed by the authority. The plaintiff brought an action claiming damages for personal injury suffered whilst a pupil at a school controlled by the State. The plaintiff alleged negligence against the State. However, there were uncontested findings that the State was not negligent in failing to have a sufficient system of supervision of the teacher or failing to supervise him properly. A majority of the Court of Appeal accepted that the State owed a non-delegable duty of care to ensure that pupils are not injured physically by an employed teacher, irrespective of whether it acted negligently or intentionally.
[42] Gleeson CJ accepted at [2] that the legal responsibility of the school authority included a duty to take reasonable care for the safety of pupils and that there may be cases where the sexual abuse is related to a failure to take such care, giving as examples negligence in the employment of a person or inadequate supervision of staff. However, he concluded at [38]-[39] that there was “no reason, either in principle or in authority, to treat the existence of a non-delegable duty as having the consequences held by the New South Wales Court of Appeal”.
[43] Gaudron J in reaching a similar conclusion emphasised at [105] that “to describe the duty of a school authority as non-delegable is not to identify a duty that extends beyond taking reasonable care to avoid a foreseeable risk of injury”. Gummow and Hayne JJ reached a similar conclusion at [265]-[270], as did Kirby J at [291].
[44] It follows that for the Respondent to succeed on the basis of a nondelegable duty, it will be necessary for him to show that Trinity breached its duty to take reasonable care for his safety by, for example, not taking care in employing Futcher or supervising his activities. In recognition of this fact, the Respondent has particularised a large number of matters in support of the allegation that Trinity failed to take reasonable care for the safety of its students, including negligence in the engagement of Futcher, a failure to supervise him and allowing Futcher to organise camps without taking steps to ensure the safety of pupils at the time. Needless to say these matters involve a consideration of the manner in which Trinity operated at the time.
[45] In Prince Alfred College the High Court (French CJ, Kiefel, Bell, Keane and Nettle JJ) after extensive consideration of the authorities dealing with the vicarious liability of employers in cases of this nature, laid down the following principles:

“[81] Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the ‘occasion’ for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.
...
[84] In the present case, the appropriate enquiry is whether Bain's role as housemaster placed him in a position of power and intimacy vis-à-vis the respondent, such that Bain's apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment. The relevant approach requires a careful examination of the role that the PAC actually assigned to housemasters and the position in which Bain was thereby placed vis-à-vis the respondent and the other children.”

[46] It should be noted that those passages emphasised the necessity of a careful examination of the role Prince Alfred College actually assigned to housemasters. The importance of the factual inquiry was also emphasised by Gageler and Gordon JJ at [125]-[126].
[47] Further, although Gageler and Gordon JJ stated at [130]-[131] that applications of the approach approved by the plurality “will develop case by case”, this application should be considered on the basis that what was said by the plurality in the paragraphs cited is the approach to be taken in determining the scope of the inquiry Trinity will be required to undertake in seeking to defend the claim and its consequent ability or inability to do so.

23 As referred to earlier, the facts in this present matter differ from Anderson in that the alleged sexual assaults occurred on school premises during school hours. At trial (if there is one), it will be necessary to consider any special role that the school has assigned to the Reverend Sandars as the Master in charge of the Preparatory School and the position in which the Master Sandars was thereby placed vis-à-vis the plaintiff. In determining whether the apparent performance of such a role may be said to give the ‘occasion’ for the wrongful act, the Reverend Sandars’ authority, power, trust, control and ability to achieve intimacy with the plaintiff must all be examined. The latter feature may be especially important.

The evidence

24 It is now necessary to refer to the evidence.

25 The plaintiff relied upon his affidavit dated 28 October 2021. The defendant relied upon: 4 affidavits of its solicitor Patrick Gordon Thompson (“Mr Thompson”) (dated 14 April 2021, 13 August 2021) and 18 October 2021, 1 November 2021); two affidavits of the Bursar, Campbell Geoffrey Duggan (“Mr Duggan”) dated 13 August 2021 and 1 November 2021; and the affidavit of Alison Doran (“Ms Doran”) sworn 1 November 2021.

26 Mr Thompson in his role as solicitor acting for the School gave instructions as to what investigations should be undertaken and collated the responses. At the hearing of this motion, both Mr Thompson and Mr Duggan were briefly cross examined.

The Headmasters file note – 2 August 2017

27 On 2 August 2017, the plaintiff complained to the school about the actions of Reverend Sandars for the first time.

28 On the same day, after the plaintiff left a message with the Headmaster’s personal assistant, Ms Joanne Gabbe, the Headmaster returned the plaintiff’s telephone call. The Headmaster’s file note records as follows (CB25):

“Follow up action by Head Master given report of contact from Mr Andrew Smith first made via telephone at the Preparatory School ...
Returned telephone call at 3.45pm. Introduced myself, proceeded then to ask him to outline his concerns in relation to "it wasn't a nice phone call", comment to Joanne Gabbe. Mr Smith whilst agitated was composed enough to allege that:
1. When he joined the Prep School in Year 6 he was the new boy, as such. Got into trouble initially by walking across Strathfield railway lines. This brought him into contact with the Master of the Prep, Keith Sandars, and this initial contact saw Keith Sandars give special attention to him, commenting on the fact that he was also an excellent sportsman, selected for 1st XI and 1st XV without any previous experience.
2. Allegedly, Mr Sandars would come into the change room and make him feel awkward. He spoke to him about genitalial differences and by implication, sexually assaulted him on more than one occasion. Apparently at times in his office when the other boys were swimming in the pool adjacent to his office.
3. When he came to the secondary school he continued to get into trouble, could never settle down, because of this experience and also felt under pressure from other staff like Mr. [Cluett], his Maths teacher, who always made him feel nervous.
4. Could not bring himself to confide in his parents regarding the alleged assaults. Left at the end of Year 9 and went back to local school in Creswick.
5. He is a single parent with two boys, 21 and 17. He has had difficulty in maintaining relationships. He mentioned he started smoking marijuana to clear his mind of these bad recollections, etc.
Response:
I thanked him for the phone call and congratulated him on having the courage to bring this to the School's attention. I confirmed that Mr Sandars was dead and that Mr West was also recently deceased. I indicated that the School was sorry that these tragic events took place and that it viewed such allegations most seriously. I indicated that the School was keen to support him and that we have an established protocol when such reports come to hand, which include contact from an outside Psychologist and a report initially back to the School. He indicated he was willing for this to occur. I also indicated that the School encourages him to take any action in notifying police or other authorities regarding this treatment and that he should feel free to do so at any point in time, and that the Psychologist who will be in touch with him will likewise encourage him to take whatever action he deems appropriate.
He confirmed he would be happy to receive a phone call from Paull Mayne. I asked him if there was anything specifically that he wanted from the School. He thanked me for returning the call, for offering counselling through Mr Mayne and essentially he wanted the truth to come out regarding Mr Sandars. I indicated I will be away for the next week and that I anticipated Mr Mayne will contact him by the end of the week and that if this did not occur for him to get in touch with Mrs Xuereb”

29 In about 2017, the school referred the plaintiff to the psychologist Paull Mayne for a professional consultation. In a letter which bears the date 26 April 2017, Mr Mayne writes that the plaintiff told him that apart from recently reporting his experiences to the school, he had been unable to reveal his story to anyone; not to his longstanding and trusted GP, not to a psychologist who treats him for a diagnosed mental illness and not to his sons. Mr Mayne writes that during their consultation the plaintiff stated that he felt reluctant to make matters public because he does not wish to cause distress to the children of Mr Sandars. He is, however, also very concerned about particular classmates, whom he feels may also have been abused (CB40).

30 For whatever reason, at the hearing of this application the plaintiff’s classmates have not been named in evidence nor have they provided any statements in these proceedings.

31 On 26 May 2012, Reverend Sandars died (CB42). Mrs Sandars, the Reverend’s wife has also died (T53.6). None of Reverend Sandars diaries have been located by the school. The school holds no prior records in relation to any alleged sexual assaults in relation to Reverend Sandars.

32 Mr James Wilson-Hogg, the former Headmaster of the school, has died. His death notice is dated 10 May 1997. He was Headmaster between 1944 and 1974, which includes the period from 1965, being the year that Reverend Sandars commenced his role of Master in charge of the preparatory school. His evidence would have been of great importance (CB133).

33 On 25 January 2016, Roderick Ian West, the former headmaster between 1975 and 1996, the period during which the assaults occurred, died (CB43).

34 Mr Angus Roberts, a P.E teacher at the School who could have provided evidence as to whether he observed Reverend Sandars at the swimming pool in 1980 and 1981, has died (CB99).

35 Ms Doran of archives at the School (“the Archivist”) reported that the plaintiff was in Year 6 in the Prep school in 1981, Year 7 in 1982, Year 8 in 1983 in Year 9 in 1984 and left at the commencement of Year 10 in 1985 (CB25).

36 The school reports of the plaintiff when he was in the prep school in 1981 are not available. The school reports of the plaintiff when he was in the senior school are available. They comprise of (CB18):

“(v) Series of School Reports for 1982:

a. Trinity Grammar School Report for Andrew Peter Smith, being a Year 7 report for the term ending 6th May 1982 (page 11);
b. Trinity Grammar School Department of Music report for Andrew Smith, being a report for Term I of 1982 (page 12);
c. Trinity Grammar School Department of Music report for Andrew Smith, being a report for Term II of 1982 (page 13);
d. Trinity Grammar School Report for Andrew Peter Smith, being a Year 7 report for the term ending 19th August 1982 (page 14); and
e. Trinity Grammar School Report for Andrew Peter Smith, being a Year 7 report for the term ending 7th December 1982 (page 15).

(vi) Series of School Reports for 1983:

a. Report Supplement for Andrew Smith for Term 1 of 1983 (page 16); and
b. Trinity Grammar School Report for Andrew Peter Smith, being a Year 8 report for the term ending 5th May 1983 (page 17);
c. Trinity Grammar School Report for Andrew Peter Smith, being a Year 8 report for the term ending 18th August 1983 (page 18);
d. Report Supplement for Andrew Smith for Term 3 of 1983 (page 19); and
e. Trinity Grammar School report for Andrew Peter Smith, being Year 8 report for the term ending 6th December 1983 (page 20).”

37 In cross examination, Mr Thompson said that he believes the class lists for Year 6 should be available. The class lists would record the names of students including those who were in the plaintiff’s class (T10.7-14).

38 Mr Duggan checked copies of the Trinity Prep magazine for the Years 1981, 1982 and 1983 to see if they revealed any potential leads to identify witnesses or administration staff that worked near Reverend Sandars office. He did not find information that would assist. Enquires were also made of the Archivist but no other information was available.

39 Mr Thompson sought to locate and interview the plaintiff’s Year 6 classroom teacher in 1981, Mr John Kleinig regarding the plaintiff’s allegations, as well as the plaintiff’s Year 7 and Year 8 teachers. In addition, Mr Thompson formed the view that secretaries employed to work at the Preparatory School in 1981 and 1982 should be located and interviewed because they may have been in a position to observe Reverend Sandars engaging in the alleged grooming and/or sexual abuse of the plaintiff or any student (Mr Thompson’s Affidavit of 13 August 2021 at [6],[12] and [13]; CB44).

40 Mr Thompson retained an investigator Mr Alan Fitzsimons of Crawford and Company (Australia) Pty Ltd (“the private investigator”) to investigate the allegations. The private investigator was unable to locate any of the three support staff that had been identified as working at the Preparatory School in 1981 and 1982. I am satisfied that extensive investigations were undertaken by the private investigator and are detailed in his reports dated 11 August 2021, 8 October 2021, 15 October 2021 and 29 October 2021.

41 After receiving the first report of the private investigator which had been unsuccessful in locating the witnesses, Mr Thompson decided to widen the search to include the teachers and staff working at the Preparatory school in 1981, being the year of the plaintiff’s alleged abuse.

42 After the effluxion of 30 years, many of the staff had died or were no longer able to be located.

43 The information as to the identity of the support staff who were present at the relevant time was provided by the Archivist.

44 The support staff were identified to be a Ms Karen Lewis, Mrs Hazel Birch, Mrs Edith Adams and Mrs L Van Der Klooster. In his second report the private investigator had made attempts to locate each of these persons but was unsuccessful in locating any of the identified secretarial or support staff. At a later stage he located Ms L Van Der Klooster (now Ms Trost), I shall refer to her evidence shortly.

45 When Mr Thompson was asked in cross examination, why he did not approach fellow students in the plaintiff’s class of 1981, he replied that firstly it was his view that they could not give any assistance in answering the allegations of what happened in Reverend Sandars office and secondly, he did not believe that the students would be able to give evidence as to the knowledge or presumed knowledge of the employees of the defendant, as to the risk with respect to Reverend Sandars (T23.24-30).

46 Mr Thompson says that after conducting enquires he formed the view that an application should be made by the School seeking to permanently stay the proceedings on the basis that they were prejudiced in responding to the plaintiff’s claim. His view was that the school would be unable to meaningfully deal with the plaintiff’s allegations given the lack of availability of witnesses and the passage of time (CB46).

47 I will briefly outline the evidence.

Reverend Keith Sandars – Master in Charge of the School

48 The Reverend Sandars (the alleged perpetrator) was the Master in Charge of the preparatory school in 1981. As outlined earlier, he was engaged by the then Headmaster of Trinity in 1964, Mr James Wilson Hogg (CB236-8).

Mr Cujes – former Headmaster of the School

49 In August 2017, when the plaintiff made his first complaint as to the alleged sexual abuse he had suffered, Mr Cujes was the Headmaster of the School. This was the first complaint of sexual abuse that the school had received in respect of Reverend Sandars. The only other adverse comment the plaintiff made against a member of staff concerned Mr Cluett, the plaintiff’s maths teacher, whom he said “always made him feel nervous”. Mr Cluett has provided two signed statements (CB80; CB86).

50 As a student, Mr Cujes attended the school to Year 12 in 1968 and became School Captain. He returned to teach at the school between 1972 and 1979 and then finally returned as Senior School Headmaster in 1996 (CB80-1).

51 Mr Cujes evidence is that Reverend Sandars’ office was adjacent to the swimming pool at the School. The pool was 20 yards in length with a change room not far from the pool. The Reverend Sandars’ office was in an adjacent heritage building, with a veranda on the side facing the pool that could be accessed from the Reverend Sandars’ office by a double French door. This evidence has been confirmed by others (CB83).

52 Mr Cujes’ evidence is that from his experience there was pressure on students to get changed quickly and it would be unusual for a student to be summoned to the Reverend Sandars office from the pool and, if so, it would have been noticed by the class teacher (CB84).

53 He considered Reverend Sandars to be a charismatic and energetic person who was well respected and a popular member of both the staff and the Old Boys. He did not consider Reverend Sandars to be a moral risk to students. So far as he can recall, no one ever previously raised concerns of this nature about Reverend Sandars (CB84-5).

Mr John Rolfe Kleinig – teacher

54 Mr John Kleinig was the plaintiff’s Year 6 Prep teacher in 1981. He is a most important witness. On 3 June 2021, his wife (or ex-wife) stated that she would “pass the investigator’s phone number onto John and I am sure he will contact you”. He did not. (CB178 at [2.5]; CB17 at [4.14] – [4.15])

55 In an attempt to locate Mr Kleinig, the private investigator contacted Mr Kleinig’s sons and his brother in the UK. He also carried out a number of searches to locate his current address. His current address remains unknown (CB178).

56 Extensive attempts to locate Mr Kleinig that have been set out in the investigator’s reports, all have been unsuccessful. The private investigator considers that all reasonable enquires have been made to contract Mr Kleinig. In short, Mr John Kleinig does not want to be located (CB178).

Gregory James Cluett – teacher

57 Mr Cluett has provided two signed statements (CB86; SCB902).

58 Mr Cluett was a teacher at Trinity from 1979 to 1984. He generally taught the lower grade classes for maths, english, commerce, divinity and coached sporting teams (CB86).

59 He is the only witness who has a recollection of the plaintiff. After describing the plaintiff’s appearance, he described the plaintiff’s personality as being an enthusiastic, friendly and being a very chatty student (CB87).

60 Mr Cluett taught the plaintiff mathematics in 1982 (Years 7 and 8). He commented on the plaintiff’s school reports but said that he did not have anything to do with the preparatory school (CB87).

61 As to Reverend Sandars, Mr Cluett thought that he was a “dominating sort of guy as he would expect in his role” and commented at [72] of his statement (CB91):

“[72] He would put his arm on the boys, around them, and touch them. I remember comments from the boys at the time. I heard talk from some of the kids about this. I may have seen it myself. He was a bit of a toucher. He was a very imposing sort of man. Even as a teacher at the senior school I found him a bit imposing, I got the impression from seeing him with some of the boys that he was a touchy feely person. I thought it was innocent at the time. Maybe these were my observations at sports events or maybe when he was visiting the senior school.”

62 It was only when he was making his statement for these current proceedings that he had heard the allegations against Reverend Sandars for the first time (CB92).

63 Mr Cluett, who the plaintiff says “always made him feel nervous”, has signed a second statement where he vehemently denies the plaintiff’s allegations that there was any cause for him to “feel nervous” (SCB902).

Ms Linda Trost – Secretary

64 Ms Trost (then Van Der Klooster) provided a statement. From March 1982 to March 1984 she was employed in the role of Reverend Sandars’ secretary/assistant (SCB852). She would have been a more valuable witness had she been in that position in 1981 when the alleged sexual assaults took place in Reverend Sandars office. However, her period of employment commenced just after the alleged sexual assaults occurred. She described Reverend Sandars office and drew a sketch plan of the layout of the configuration of her office and Reverend Sandars office (SCB859).

65 It is fair to say that Ms Trost has a very good recollection of her time at the school. Her evidence can be summarised as follows. Mr Sandars office was in the old building, which was originally an 1800s built house that had been converted. This building was known as ‘Llandilo house’. As you entered the School from the front, you walked along a corridor. On the left hand side of the corridor was the library. On the right hand side was access to the School office, which Ms Trost shared with another secretary named Karen Lewis (who has not been able to be located) (SCB853-5).

66 Mr Sandars' office was accessed through the other office where Ms Trost worked. Ms Lewis sat facing the office entrance and Ms Trost was therefore facing her back when sitting at her desk. To her left hand side, when seated at her desk, Ms Trost could see directly into Mr Sandars' office. The entrance door to Reverend Sandars' office was about 4 or 5 paces to the left of her desk. If Reverend Sandars office door was open, she had a direct line of sight from her desk to Reverend Sandars’ desk (SCB853-4).

67 Ms Trost’s impression is that the office layout had not changed since 1981 on the basis that the desks were positioned for access from both secretaries' desks to wall power points, telephone sockets and the switch board. The shape and dimensions of the office would have prevented placement of the desks in a different configuration. Ms Trost does not know how they could have been arranged differently (SCB854).

68 There were students visiting Reverend Sandars in his office, in and out, all the time. To her recollection his office door was always kept open when a student went in. Reverend Sandars would only close his office door when he had parents and pupil visiting him and then it would be closed for privacy as the outside office area was always busy with people visiting the office. It would only have been if there was a major disciplinary issue and parents and pupil were in his office that he would close his office door (SCB854-5).

69 Ms Trost remembers Reverend Sandars’ office had very large windows like bay windows that took up most of the front of the building. There was a veranda around the building. She does not recall doors opening from Reverend Sandars office onto the veranda. Nor does she recall how the windows opened, or whether there were curtains on those windows (SCB854).

70 She says she never had a concern that Reverend Sandars was a child sexual risk to students (SCB858).

Ms Antonia Deasey – Music teacher

71 A statement has been obtained from Ms Deasey, who has been employed at school as a music teacher (CB100).

72 She commenced employment in June or July 1981. She has no recollection of the plaintiff. She has no adverse comments about Reverend Sandars (CB100-2).

Ms Christine Brown – Infant teacher

73 A signed statement has been obtained from Ms Christine Brown, who was employed at the School between 1975 and 2015 as a teacher in the prep school (CB104).

74 She recounts the school day started with a chapel service which was taken by Reverend Sandars. She would see Reverend Sandars practically every day and believed he was held in high regard and affection by the students. They adored him. Especially the little ones. She says they had pure affection for him (CB105).

75 She recalls that Reverend Sandars’ office had French doors that opened out onto the veranda, the top half being glass. She would often walk past the French doors particularly in summer when going to the pool and could see into his office (CB105).

76 She never heard or saw anything that caused her concern (CB105).

Robyn Harris – Librarian

77 An unsigned statement has been obtained from Robyn Harris. She is reluctant to provide a signed statement.

78 Ms Harris was employed as a Librarian at the school from 1976 to 1995. She observed Reverend Sandars every day and never had any concerns regarding his interaction with students nor heard complaints. She was present for a lot of the chapel services that were held every morning and attended by all the children 5 days each week. She never observed the Reverend Sandars touch a child inappropriately. She was shocked to hear the allegations (CB108-9).

Christine Ballard

79 A signed statement has been obtained from Ms Ballard who was employed at the school between 1977 and 2006 as a preschool teacher. She taught 4 year olds (CB111).

80 Reverend Sandars would visit her classroom every Friday after the chapel service to tell a bible story to the students. The preschool students all sat in with her during the bible story lesson (CB112).

81 Her observation was that Reverend Sandars was a man that would put his hand on a child’s shoulder to encourage them. In bible story class he would draw picture and they would choose a student to take the picture home. When presenting that award to the student, Reverend Sandars would put his hand on the child’s shoulder and say something like “well done”. To her knowledge everyone did that in those days. She says that he never asked any of her students to visit him in his office (CB112).

82 She says that she did not witness any behaviour by Reverend Sandars that would cause her concern (CB112).

Mark Hines – teacher

83 A signed statement has been obtained from Mr Hines who was employed at the school between 1976 and 1987. He started by teaching Year 3. He also taught Years 4-5 during his period at the school. He does not really recall what class he taught in 1981 (CB114).

84 He found Reverend Sandars without exception an excellent leader. He was a Clergyman, a Minister, and was quite prepared to put an arm around a student. That was the nature of his personality. Mr Hines acknowledged that times are different now than what they were then. For example, if a kid fell over in the playground, you would pick them up and put an arm around them to comfort them, but you wouldn't do that now. He believed Reverend Sandars behaved the way you would expect a man to behave with children (CB117).

85 Mr Hines never had any concerns in relation to Reverend Sandars interaction with the students nor did he ever hear of any complaints against him (CB117).

86 He recalls there were at least two secretaries in the office adjacent to the office of Reverend Sandars. He did not observe anything in Reverend Sandars’ behaviour that he considered inappropriate (CB116).

87 His recollection is that the curtains on the French doors in Reverend Sandars office were drawn. He can’t remember whether the doors to Reverend Sandars office were kept open or closed. He also never saw Reverend Sandars near the pool (CB115).

James Jockel – teacher

88 A unsigned statement has been obtained from Mr Jockel, who was employed as a teacher at the School between 1975 and 1982 (CB119).

89 The behaviour of Reverend Sandars and his interaction with the students never caused him any concern. Mr Jockel’s classroom was one in close proximity to the Reverend Sandars’ office. Mr Jockel recalls that the Reverend Sandars’ secretary sat right outside his office door and, although he cannot remember her name, he recalls she was a middle aged married woman. Mr Jockel has a vague recollection of a student that might have been the plaintiff (CB120).

Dennis Pogson – teacher

90 A signed statement has been obtained from Mr Pogson, who was employed at the school between 1973 and December 1981 (CB126).

91 He always found Reverend Sandars to be overly bubbly, and wanting to be everybody's friend. He remembers he was physical and thought nothing of giving you a hug in the morning. Mr Pogson never saw Reverend Sandars do this with students, just with staff. He was a very personable person. If you did anything wrong, then he would quickly pull you into line. He was very strict with the students and protecting the school's good name. He would not stand for incorrect behaviour at the school or on public transport, and he was strict on the children wearing the correct uniform including their boater hats. He was always making sure that the students behaved the right way in public (CB127).

92 With staff, Mr Pogson recalls that Reverend Sandars was always a very pleasant bubbly person unless you did the wrong thing. In the morning, he would put his arm around you and say, “how are you going this morning?” It threw Mr Pogson when Reverend Sandars first did this to him when he joined the school, but Reverend Sandars slackened off after a while. He didn’t think there was anything sexual in it (CB127).

93 In respect of the Reverend Sandars’ office, he recalls that two administration ladies worked in the office next to that of Reverend Sandars. Further, he recalls that Reverend Sandars’ wife, Anne Sandars, was always hovering around in that area as she ran the canteen. He recalls Reverend Sandars would take morning assembly and chapel and would greet staff in the undercroft area of the chapel (CB128).

Eden Scott – Art teacher

94 An unsigned statement from Mr Scott has been obtained, who was a teacher at the School from 1976 to 1980 and a former student. He did not observe any adverse conduct by Reverend Sandars (CB 170-3).

Gary Connors – teacher

95 A signed statement has been obtained from Mr Connors, who was a teacher at the School from 1973 to 2014. In about 1980-1981 he was teaching Year 3 classes. He never observed adverse conduct by Reverend Sandars. He never saw Reverend Sandars in the changing rooms (CB188-99).

Paul Cockrem – teacher

96 An unsigned statement has been obtained from Mr Cockrem, who was a Year 3 teacher at the school from 1980 to 1988. He did not observe any adverse conduct by Reverend Sandars (CB192-3).

Phillip Cogger – teacher

97 An unsigned statement has been obtained from Mr Cogger, who was a Year 4 teacher at the school from 1980 to 1981. He did not observe any adverse conduct by Reverend Sandars (CB196-7).

Meriel A Moore (formerly Swan) – teacher

98 An unsigned statement has been obtained from Ms Moore, who was a Kindergarten teacher at the school from 1978 to 1981. She did not observe any adverse conduct by Reverend Sandars. Her husband is currently on the school board (CB199-200).

Josie Demlakian (formerly Otton) – staff

99 An unsigned statement has been obtained from Mr Demikian, who was a Year 1 teacher from 1982 to 1986. He did not observe any adverse conduct by Reverend Sandars (CB203-4).

Rhonda Rush (formerly Cooley) – staff

100 An unsigned statement has been obtained from Ms Rush, who was a teacher at the school from 1975 to 1982, sometimes teaching Kindergarten and sometimes Year 1. She did not observe any adverse conduct by Reverend Sandars (CB207-9).

Susan Woolfe – teacher

101 Ms Woolfe was employed at the school from 1982 for about 4 or 5 years. She taught kindergarten. She had no concern about Reverend Sandars but only saw him at staff meetings and assemblies (SCB 912-3).

Rick Walker – teacher

102 An unsigned statement has been obtained from Mr Walker, who was a student and then a teacher at the School from 1981 to 1986. He taught special needs in 1981/1982 that ranged from Kindergarten to Year 6 students. He did not observe any adverse conduct by Reverend Sandars (CB211-3).

103 Reverend Sandars presided over his father’s funeral and his wedding. He observed that the curtains in Reverend Sandars office were never closed. He remembers saying to Reverend Sandars “why don’t you close the curtains” to which Reverend Sandars responded he “liked the light coming in” (CB212).

Councillors and Old Boys

104 The private investigator also traced some of the councillors on the board when Reverend Sandars was employed by the school. The investigator obtained signed statements by Mr Barry Collins (SCB832), Mr Paul Meldrum (SCB834), Mr James Mulls (SCB836), Reverend David Easterway (SCB838) who was a student from 1950-1960 and chaplan from 1986-1998, Reverend John Wise (SCB840), Reverend Hugh Scott (SCB842), Mr Graeme Stablefeldt (SCB844), Reverend James Ramsey (SCB846), Reverend Kenneth Churchward (SCB848) and Reverend John Davies (SCB850). None of these men had any concerns of Reverend Sandars as being a child sexual risk to students in his care. The board members were individually satisfied that this subject had never been raised at a board meeting that they attended.

Lack of insurance

105 The next issue to be addressed is that of the lack of insurance.

106 The minutes of the Executive Committee of the School refer to the appointment of HM Bates Insurances Pty Ltd as the school insurance brokers as at 15 June 1976. There is reference in the Bursar’s report to the Executive Committee meeting held on the 19 February 1980 of the Public Liability insurance being increased to $5,000,000.

107 There is a subsequent reference in the Bursar’s report of 16 December 1980 to public liability insurance cover of $5,000,000.

108 There are references in Executive Committee minutes held on the 8 December 1981 that refers to a review of insurance by HM Bates.

109 On balance, the evidence is to the effect that the school had public liability insurance cover with a limit of indemnity of $5,000,000 placed by HM Bates Pty Ltd (CB655). HM Bates company has subsequently been deregistered. Attempts to identify the underwriter have been unsuccessful. It is likely that for the year of 1981 the defendant is uninsured (CB233).

The defendant’s submissions

110 The first notice that the defendant had of any adverse criticism of the Reverend Sandars in respect of his conduct with students was that made by the plaintiff on 2 August 2017. There is no evidence of any other complaints being made to any other authority such as the police regarding Reverend Sandars behaving inappropriately towards students or committing any acts of sexual assault.

111 The plaintiff alleges that the sexual assault took place on more than 10 occasions in 1981 at one location, namely, the office of the Reverend Sandars. It is no doubt impossible for the plaintiff to particularise the occasions more than he has done.

The assaults

112 It is impossible for the defendant to positively contradict the allegations made in the ASOC without being able to adduce evidence from Reverend Sandars who died 18 months prior to the complaint being made and 34 years after the alleged events took place.

113 The defendant has made more than reasonable efforts to ascertain the whereabouts of the secretarial and support staff that were apparently located outside the office of Reverend Sandars at the time the alleged sexual abuse occurred without success, except for Ms Trost has been located and has provided a statement.

114 A hearing on such a basis is not only unfair to the defendant but it brings the administration of justice into disrepute if findings are made of conduct that constitutes serious criminal conduct in the absence of the alleged perpetrator due to his death This is especially so as the alleged perpetrator was alive for most of the period of delay and the delay was due to no fault of the defendant.

115 This is not a case where the plaintiff has put on evidence that he intends to adduce tendency evidence at the hearing such as in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore  [2021] NSWSC 1204.  In that case, while the perpetrator and other persons who could have given instructions were dead, the Court accepted the submission on behalf of the plaintiff that he was able to give a “credible account” which was supported by the similarity of accounts given by other victims and a large number of documents that established that, to the knowledge of the perpetrator’s superiors, the perpetrator was identified as a paedophile resistant to treatment. This is not the present case.

116 In contrast in the present case there is no such corroborative evidence. The allegations of the plaintiff stand on their own as to the sexual assault and the events said to give rise to constructive knowledge. The defendant is being asked to be accountable for the criminal acts of a third party who is now dead.

Constructive knowledge

117 In respect of the events that are said to give rise to constructive knowledge, the plaintiff alleges that these went unnoticed by the relevant staff. If that is correct then the only persons privy to the events are the plaintiff and the Reverend Sandars.

118 In these circumstances, it is submitted that the absence of the Reverend Sandars, in respect of novel events, gives rise to such prejudice that it would be manifestly unfair to the defendant to allow a hearing to proceed.

119 The entirety of the evidence that can be marshalled by the school gives no credence or corroboration to the material facts pleaded by the plaintiff. However, the absence of Reverend Sandars prevents the defendant directly contradicting the plaintiff in this regard.

120 Further, in respect of the circumstances said to surround the events, the plaintiff’s class teacher, Mr Kleinig, is crucial. Mr Kleinig could comment on whether the plaintiff was called out of class to go to the office of Reverend Sandars. He is unwilling to provide a statement and his address is unknown. He is an important witness. Further, it is Mr Kleinig who would have noticed any adverse behaviour by the Reverend Sandars to his students, both at the pool and in assembly. His absence deprives the defendant from adducing evidence from the member of staff who had the closest association with the plaintiff at the school in 1981. In these circumstances in would be manifestly unfair to the defendant to allow a hearing to proceed.

The precautions

121 The precaution against the risk of harm that the plaintiff alleges should have taken place is an assessment of the Reverend Sandars prior to appointing him to a position of authority at the School: see ASOC at [8(d)(a)]. The Headmaster who engaged the Reverend Sandars, Mr James Wilson Hogg, is dead and likewise the Reverend Sandars’ immediate superior from 1975 onwards, Mr West, is also dead. It is therefore impossible for the defendant to adduce evidence as to the precautions it took in respect of the engagement and monitoring of the Reverend Sandars.

122 The role given to the Reverend Sandars as Master in charge of the School becomes of paramount importance in the inquiry to be undertaken by the Court in assessing whether he was cloaked by the defendant with the authority, power, trust, control and the ability to achieve intimacy with the victim that would give rise to vicarious liability. A careful examination of the role the defendant actually assigned to the Reverend Sandars cannot be undertaken with any degree of rigor. As such the court cannot be comfortably satisfied of the veracity of the findings that it will make and in attempting to do so it would not only be unfair to the defendant. Undertaking this process in the current circumstances would bring the administration of justice into disrepute.

Inability to benefit from insurance cover.

123 Finally, the inability to locate the underwriter of the defendant’s public liability insurance due to the effluxion of time imposes an unfair burden on the defendant. This was acknowledged by the High Court in Batistatos in deciding that a defendant was entitled to a stay where there had been a delay in the prosecution of proceedings.

124 The plaintiff was born 28 June 1969. After 1990, the plaintiff could not have commenced proceedings until the commencement of s 6A of the Act on 17 March 2016. However, the Court in Batistatos was of the view that one did not look at the conduct of the plaintiff but at the burdensome effect upon the defendant that has arisen due to lapse of time.

125 The inability to avail itself of cover which on the balance of probabilities was found to exist and respond to the liability was found to be an important factor by Balla DCJ in Lake v Trinity Grammar School NSWDC Unrep 28 March 2018.

126 Senior Counsel for the defendant in oral submissions in reply, referred to the situation in Bishopsgate and stated, that where a case is being commenced within time, the availability of insurance cover doesn’t matter, a case will go on regardless. However, in these proceedings, the delay has resulted in the loss of records relating to insurance and so the delay becomes an engine of the oppression of a party.

The plaintiff’s submissions

Stay of proceedings

127 The majority in Batistatos (Gleeson CJ, Gummow, Hayne and Crennan JJ) at [15] cited with approval the remarks of McHugh J in Rogers v R [1994] HCA 42; (1994) 181 CLR 251 at 286, to the effect that abuse of procedures that may lead to a permanent stay being granted usually fell into one of three categories:

(1) the court's procedures are invoked for an illegitimate purpose;
(2) the use of the court's procedures is unjustifiably oppressive to one of the parties, or;
(3) the use of the court's procedures would bring the administration of justice into disrepute.

128 These categories overlap. In any event, it is clear as Gaudron J emphasised in Ridgeway v The Queen (1995) 184 CLR 19, that the concept of abuse of process "extends to proceedings that are 'seriously and unjustifiably burdensome, prejudicial or damaging', or 'productive of serious and unjustified trouble and harassment'": see Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 at 247; Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 502; [1989] HCA 21.

129 In Moubarak, Bell P (with whom Leeming JA and Emmett AJA agreed) stated at [89], "a fair trial is not synonymous with a perfect trial". It is the plaintiff’s submission that the absence of documents or witnesses, even if regarded by the party as significant, will not, of itself, be such as to warrant a stay. A stay is warranted only where the delay and consequent loss of documents or witnesses is such that, as Mason CJ pointed out in Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 (“Jago”), any trial is so unfair and burdensome so as to bring the administration of justice into disrepute.

130 It is the protection of the court and its standing as an arm of government that is the focus, not the disadvantage, real or perceived, of one party or the other by reason of the absence of evidence that might otherwise be available. The dignity of, and public confidence in, the Court will be traduced if it is perceived that wrongs may have been done to vulnerable children by an egregious breach of trust, and no attempt is made by the Court to attempt to determine the rights or wrongs of the respective cases.

131 Denying a plaintiff with a prima facie case a right to have it tested by the "usual processes" is itself productive of erosion of confidence in the administration of justice. That is a more serious insult to the proper administration of justice where lapse of time is the principal ground of complaint and the abuse alleged is causative of the lapse of time.

132 The Law Reform (Miscellaneous Provisions) Act 1944 (NSW) abrogated the common law rule that causes abated on death. Nothing was said about prejudice. The legislature assumed cases would proceed even if an important party or witness was dead.

133 In Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 at 720 (“Cox”); [1935] HCA 48, it was stated that "in general, it is paramount that the principle that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed"

134 The surest guide are the statements of principle in Jago, emphasising that the focus of the exercise of the power to stay is the protection of the courts processes and the preservation of public confidence in the courts.

"In exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice." Mason CJ in Jago, citing with approval Richardson J in Moevao v Department of Labour (1980) 1 NZLR 464 at [481].

135 The Court's power to protect itself from an abuse of process in criminal proceedings, extends to a power to prevent unfairness to the accused or whether it is limited to traditional notions of abuse of process, such as bad faith and oppression. The decision of Anderson holds that the same principles apply to civil proceedings.

136 The central issue for the Court's consideration is not whether the defendant can get a fair trial, or whether it can meaningfully respond to the plaintiff’s case. To so pose the issue is to improperly distract the Court from the real question – whether to allow the case to proceed to trial is calculated to bring the administration of justice into disrepute.

137 To so express the issue is to focus on the protection of the Court's process, dignity and place as an organ of government; to ask "can the defendant meaningfully respond" which in some cases morphs into "can there be a fair trial", is to concentrate on the impact upon one of the parties, rather than on the ability of the Court to do justice between the parties.

138 An example of the refusal of the community to permit allegations of egregious wrongs to go uninvestigated by the ordinary processes of trial is Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 (“Polyukhovich”). That case involved Commonwealth legislation which, four decades or more after the event, created a war crimes offence for which Polyukhovich was charged, being in the nature of some 850 cases of murder in death camps in the Ukraine when Polyukhovich was working for the Third Reich. There was a delay of almost 50 years after the relevant events. The challenge to the prosecution was on grounds that the legislation creating the offence was not within the powers given to the Commonwealth by the Constitution. That challenge failed, a majority of 4 judges to 3 denying invalidity. Abuse of process was not raised; the power, or jurisdiction, of the Court to stay for abuse of process would have been protected by Chapter III of the Constitution. The matter went to trial in the ordinary way. Polyukhovich was acquitted. The central issue at trial was identification.

The delay

139 So far as the considerable delay in the proceedings is concerned, a lengthy delay of itself does not justify a stay. The plaintiff referred to Jago where Mason CJ stated that "[w]here delay is the sole ground of complaint, an accused seeking a permanent stay must be 'able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute'" and that "there is no right to... a trial within a reasonable time independent of the right to be protected from unfairness resulting from undue delay” (at [584]).

140 The plaintiff submitted that the alleged actions of the Reverend Sandars caused the delay as the plaintiff took years to come to terms with Reverend Sandars’ abuse, and that this was not unusual in cases of child sexual abuse. See: Justice Peter McClellan AM, Royal Commission into Institutional Responses to Child Sexual Abuse Report (December 2017).

141 The plaintiff submitted that it is hard to imagine anything more calculated to be destructive of public confidence in the administration of justice than a permanent stay being granted in circumstances where abuse has allegedly caused an aberration of the plaintiff’s mind (see Paull Mayne’s (psychologist) report CB 40) and has led to lapse of time in bringing proceedings.

The evidence

142 The plaintiff submitted that there is available evidence that could be used to substantiate the defendant’s case. As to Mr Klenig, he didn’t want to be involved at the earlier point in time however it cannot be said that he is a lost cause. Ms Trost, in her statement, spoke with remarkable clarity about the office and the practices in 1982. The detail with which Ms Trost spoke about, the practices in 1982, and the fact that Mr Connor who was at the school between 1975 and some later point in time is available, puts the defendant in a position whereby it can put forward a meaningful case.

143 So far as Mr Garry Connor is concerned, he has not provided a statement in these current proceedings. It appears that he made a statement in the Anderson proceedings. His statement mainly dealt with the school camps and school sport: see Anderson [97]-[114]. These are not relevant factors here.

144 The statement of claim for the defendant dismisses the ability of 11 and 12 year old boys to cast their mind back to their last year in primary school before they go off to big school as so vanishingly small, that it is impossible to accept that anything meaningful could come out of it.

145 The plaintiff submitted that the School was on notice of abuse occurring from 1997, when Mrs Anderson complained to Reverend Sandars that her son had been abused by Mr Futcher. Alternatively, the plaintiff submitted that the School was on notice from 2007. Nothing was done to investigate abuse by, it seems, Futcher, Duffy, Shiel and others.

146 The Reverend Sandars had a duty to report his acts, and those of Futcher of which he became aware according to Mrs Anderson well before his death. The school cannot be heard to, on the one hand give Reverend Sandars unfettered control of the School, and on the other deny knowledge of, or the consequences for, his wrongdoing.

147 There are many cases that are tried on an economy of evidence: motor accident cases have been routinely tried notwithstanding the death, or intellectual incapacity, of one of the parties, even when the objective indicia or detritus from collision have been sparse in the extreme.

148 The plaintiff, noting the different legislative regime, pointed to the Dust Diseases Tribunal, who applying common law principles routinely decides cases in which dramatis personae central to a wide range of factual issues are dead or cannot be found.

149 The plaintiff submitted that under s 140 of the Evidence Act 1995 (NSW) the school will get the benefit of the higher quality of proof the court might require to achieve satisfaction. The plaintiff submitted that furthermore, the absence of Reverend Sandars will invite more careful scrutiny of the plaintiff’s evidence as per Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63; (1774) 98 ER 969 (“Blatch”). In Blatch, Lord Mansfield found that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. The plaintiff argues that as such the absence of Reverend Sandars may disadvantage the plaintiff in the trial of the issue "abuse or no abuse".

Differing factual scenarios

150 Because each case must turn on its own facts it is an invitation to error to compare and contrast factual situations in other cases. It is the plaintiff’s submission that the defendant’s reliance upon various authorities, particularly that of Anderson, are misplaced.

151 In Anderson, the granting of the stay is explained by the nature of the issue to which absent evidence would go – the "link" between the abuse and the school. That is not the issue here – it is an entirely different issue. Was the abuse imposed on the plaintiff or not?

152 The plaintiff submitted that the position of Reverend Sandars on the alleged facts is totally different to that of the teacher Futcher in Anderson. In Anderson at [465] the Court of Appeal stated:

“[465] Although it may be accepted that Futcher was a teacher at the school and at least in that capacity had some association with the respondent [Anderson] in 1974, that does not seem, in my opinion, of itself to give rise to vicarious liability having regard to what was said in Prince Alfred College. To establish vicarious liability it will be necessary to determine whether Futcher was placed in a position of power and intimacy vis-à-vis the respondent which gave the occasion for the wrongful acts, such that they could be regarded as having been committed in the course of Futcher’s employment.”

153 A number of the allegations against Futcher took place on Camps and excursions outside the school premises. In the school’s evidence put before the Court in Anderson it was suggested that the school was “under the total control of the Reverend Sandars” (at [252]), that the Reverend Sandars “ran the Prep School in an authoritarian manner and was very much in control of the Prep School” which was “run very much as a separate entity from the senior school” (at [310]), that “everything was concentrated in the Reverend Sandars” (at [364]) and so on.

154 The plaintiff submitted that the facts in Moubarak are also different to that of the current proceedings. In that case a stay of proceedings was granted in circumstances where in a familial association, involving issues relating to financial dealings, called for a response by the alzheimic defendant.

155 In Batistatos the point of decision was rejection by the High Court of the submission by the appellant plaintiff that in the absence of misconduct on the part of the plaintiff, there was no power to make the order sought. It was also a case in which geographical features of a roadway were of significance to the fact finding exercise, as they had changed.

156 The plaintiff further submitted that Lake v Trinnity Grammar School NSWDC (2018) (unreported) (“Lake”), heard by Balla DCJ, turns on its own particular facts and is of no assistance to the court other than to demonstrate that processes of inductive reasoning may support a finding of paedophilia being endemic at the school, under the stewardship of the Reverend Sandars for years before the plaintiff was assaulted. Lake involved allegations of abuse by 2 teachers, Shiels and Duffy, between 1976 and 1981.

157 In Connellan, there was a contest between witnesses who were children when alleged abuse occurred, and which Victorian Court of Appeal characterised as based on evidence "the reliability of which must seriously be doubted (at [65]-[66]).

158 This demonstrates why the Court must deal with the present case, by reference to principle and not by comparing and contrasting this case with the facts & circumstances of other cases.

Vicarious Liability – Assault

159 In Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-operative Assurance Co. of Australia Limited [1931] HCA 53; [1931] 46 CLR 41 (“Colonial Mutual”), the person performing services for the appellant was held not to be acting independently, but as a representative of the appellant company which should be considered as the tortfeasor. In Colonial Mutual, Gavan Duffy CJ and Stark J stated at 46:

“But if it does not, still we apprehend that one is liable for another’s tortious act ‘if he expressly directs him to do it or if he employs that other person as his agent and the act complained of is within the scope of the agent’s authority.’ It is not necessary that the particular act should have been authorised: it is enough that the agent should have been put in a position to do the class of acts complained of (Barwick v English Joint Stock Bank; Lloyd v Grace Smith and Co). And if an unlawful act done by an agent be within the scope of his authority, it is immaterial that the principal directed the agent not to do it.”

160 In Anderson, it was submitted for the defendant that “the mind and strength of the whole school lay in the Reverend Sandars” (at [374]) and that the Reverend Sandars had “unilateral control” over the School (at [378]). In other words, as the defendant’s representative, the Reverend Sandars was the alter ego of the defendant.

161 In oral submissions the plaintiff said that the primary case put against the school is one of assault and referred to what was said by Leeming JA (with whom Beazley P and Ward JA agreed) in Croucher v Catching [2016] NSWSC 132.

Insurance

162 The defendant's reliance on its inability to identify an insurer is misplaced. The common experience in the Dust Diseases Tribunal is that insurance coverage cannot be identified, or if it is, it is very limited. Again as noted earlier, the plaintiff accepts that the Dust Diseases Tribunal operates under a different legislative regime.

163 The fate of Bishopsgate Insurance Australia Limited Group, outlined by the Hon Justice M. D. Kirby CMG in an address to the Australian Insurance Law Association, entitled "The Insurance Contract after ALRC [20]", demonstrates the inutility of the defendant's submission. The shares in Bishopgate were sold by P & O company to a rogue who, during 1983, denuded the company of its assets and the company failed. It had a significant liability portfolio. Many defendants sued were left without insurance cover of any kind. No quarter was given to those so affected. It was treated as "rub of the green", as it were.

Resolution

164 The plaintiff alleges that in 1981, when he was in Year 6, he was sexually abused 10 times by Reverend Sandars, Master of the School. The alleged sexual abuse usually took place in his office, occasionally at the pool change room and it is also alleged that Reverend Sandars would stroke the plaintiff’s hair and ears at assembly.

165 It is not just the alleged sexual assaults committed by Reverend Sandars that are in issue in these proceedings. It is also whether the School should be held vicariously liable for the actions of the Reverend Sandars, and/or whether the School owed the plaintiff a non-delegable duty of care.

166 It is also alleged that, so far as constructive knowledge is concerned, the defendant has to address whether it breached its duty of care in a number of ways:

(1) by failing to take reasonable care of the plaintiff or take reasonable precautions in failing to undertake an assessment of the Reverend Sandars prior to appointing him to a position of authority in the school;
(2) by failing to institute and maintain a system of mandatory reporting of suspected causes of sexual assaults upon children of the school;
(3) by failing to institute and maintain a program to educate children of the School in relation to their right to be free from sexual abuse at school and to report any sexual abuse;
(4) by failing to conduct an audit of student attitudes to teachers on a regular basis;
(5) by failing to seek input from students as to the appropriateness of staff; delegating the care of the plaintiff to a person who did not take reasonable care for the health and wellbeing of the plaintiff; and
(6) by failing to properly supervise the school.

167 Finally, the School has to meet the allegation that Reverend Sandars and the School were part of a common enterprise involving the education and care of students and the sexual abuse occurred in the course of that enterprise.

168 An interesting feature of these proceedings is that there are other proceedings, such as Anderson, which concern the same School but not the same accused. The facts in these current proceedings differ from Anderson in that the alleged sexual assaults here occurred on the school premises during school hours. At trial (if there is one), it will be necessary to consider any special role that the school has assigned to the Reverend Sandars as the Master of the School and the position in which Reverend Sandars was thereby placed in relation to the plaintiff. In determining whether the apparent performance of such a role may be said to give the ‘occasion’ for the wrongful act, Reverend Sandars’ authority, power, trust, control and the ability to achieve intimacy with the plaintiff must be examined: see Prince Alfred College Incorporated v ADC [2016] HCA 37; (2016) 258 CLR 134 at [80]- [84])

169 Although I accept that “a fair trial is not synonymous with a perfect trial” (Moubarak at [89]) where the use of court procedures is “unjustifiably oppressive to one of the parties” or “would bring the administration of justice into disrepute” (Batistatos at [286]) it may justify the grant of a permanent stay of proceedings. It is therefore necessary to refer to the evidence of both parties so as to determine whether the school has an ability to defend the claims made against it.

170 Earlier in this judgment I have set out in detail the availability and non-availability of evidence. As to what did or did not occur inside the Reverend Sandars’ office, on the plaintiff’s evidence, only he and the late Reverend Sandars himself would be able to give evidence, as the door to the office was closed when the abuse allegedly occurred.

171 There are a number of other important witnesses. Mr Klenig, as the plaintiff’s teacher, would be in a position to give evidence as to his recollection of whether the plaintiff was called out of class to go to Reverend Sandars’ office. I am satisfied that after extensive enquires to locate Mr Klenig, it appears most likely that he does not want to be located and/or is not willing to give evidence. While Senior Counsel for the plaintiff submitted that he may be located in the future, it is the state of the evidence in existence at the hearing of this application that is relevant to my analysis.

172 Mr Roberts, as the School PE teacher at the relevant time, would have been in a position to provide evidence as to whether Reverend Sandars appeared at the pool and/or in the change room. As some of the other witnesses have stated, it would have been an unusual event for Reverend Sandars to turn up at the pool, and presumably Mr Roberts may well have noticed. However Mr Roberts has died.

173 Ms Trost, as a secretary who sat outside of Reverend Sandars office from March 1982, had a direct line of sight into Reverend Sandars’ office from her desk. She opined that she did not believe the lay out of the office had changed since before her arrival due to the layout of the desks, and that the Reverend Sandars’ door was always open unless there was a serious discliplinary matter for which a child was attending with their parents. She never had a concern that Reverend Sandars was a sexual risk to students.

174 Mr Cluett, the plaintiff’s year 7 and 8 mathematics teacher, has a recollection of the plaintiff’s appearance and was able to comment on some of his senior school reports but did not have anything to do with the preparatory school. He recalls that Reverend Sandars was a “dominating sort of guy as you would expect in his role”, and opined that he found him “a bit imposing”.

175 Mr Cluett’s recollection is ostensibly consistent with the role of Reverend Sandards as described in Anderson wherein the Preparatory School was described as being “under the total control of the Reverend Sandars” at [252], the Reverend Sandars was said to have “ran the Prep School in an authoritarian manner” at [310], and it was said that “mind and strength of the whole school lay in the Reverend Sandars” at [374].

176 From what has been ascertained as to the overarching role of Reverend Sandars, it would have been expected that any complaint of sexual abuse by a student should have been reported to him. In Anderson, it was revealed that Reverend Sandars did not make a record of alleged sexual abuse of Anderson by the teacher Mr Fletcher. In these circumstances, it seems most unlikely that even if a student did report untoward conduct by any teacher, that Reverend Sandars would make a record of the allegations, especially if they were leveled against him.

177 A number of teachers observed that Reverend Sandars would “put his hand on a child’s shoulder” when congratulating them (Ms Ballard at CB112), “would put his arm on the boys, around them and touch them... he was a bit of a toucher” (Mr Cluett at CB91) or would “put an arm around” staff members and say “how are you going this morning?” (Mr Pogson CB127). However all of the teachers who have been located expressed the common view that they did not think that Reverend Sandars posed a risk to the students and that they did not observe any untoward behavior on his part.

178 I accept that after extensive searches, the school has ascertained it holds no records in relation to the plaintiff’s or any other student’s allegations of sexual abuse by Reverend Sandars until the plaintiff first reported it to Mr Cujes, in 2017. The Old Boys, some of whom have been on the Counsel, provided similar evidence that were never advised about the alleged sexual assault.

179 Of the headmasters who would be able to give evidence as to when sexual abuse was reported and their observations of Revereand Sandars, Mr William-Hogg (headmaster from 1944-1974) has died, Mr West (headmaster from 1975-1996) has died, and Mr Cujes was not at the School at the relevant time. Hence there are no witnesses who were in a position of authority in 1981 who can give evidence either as to procedures if any that were followed by the School when there was an allegation of sexual abuse.

180 As to the school records, the plaintiff’s school reports in Years 7 to 9 are available, but the plaintiff’s reports in Year 6 are not. A class list would have been included in the plaintiff’s Year 6 report and may have assisted.

181 Senior Counsel for the plaintiff criticised the School for not seeking out the plaintiff’s classmates in 1981. In cross examination, Mr Thompson explained he did not do so because firstly, it was his view that they could not give any evidence in answering the allegations of what happened in Reverend Sandars’ office and secondly, he did not believe those students would be able to give evidence as to the knowledge or presumed knowledge of the staff members as to the risk of abuse by Reverend Sandars. I accept that the plaintiff says that he is concerned about particular classmates who he feels may have been abused but for whatever reason they have not been identified nor have any witness statements available at the hearing of this application.

182 It was submitted by the plaintiff that the School should be denied a stay of proceedings because if it had instigated an earlier investigation there would not have been such a paucity of available evidence. The first time that the School became aware of the alleged sexual abuse was on 2 August 2017 and the School referred the plaintiff to a psychologist. However, at that time the plaintiff was undecided on what action he would take. It was only on 17 February 2021 when the plaintiff filed his statement of claim that the defendant commenced conducting inquiries.

183 While Senior Counsel for the plaintiff likened this matter that of Bishopsgate, where despite a lack of insurance no quarter was given to those affected, Senior Counsel for the School submitted that had this case been commenced within time it would have proceeded regardless of whether the defendant had insurance but the delay in these proceedings has resulted in the loss of records relating to insurance and has consequently become an engine of their oppression.

184 The lack of insurance cover is the same as set out in Anderson and referred to earlier in my judgment. At [487] in Anderson, the Chief Justice stated:

“[487] The primary judge also dismissed the absence of insurance as a relevant consideration (see [328] above). I have referred at [293]-[297] above to material which would suggest that insurance covering a claim of this nature existed at the time. The remarks of the primary judge that Trinity could meet the liability in any event, in my view, overlooks the prejudice which was described by Bryson JA in the Court of Appeal in Batistatos at [71]. Like the present case, there was nothing in that case to suggest that the applicant for a stay could not meet any verdict.”

185 I accept that the lack of insurance is a relevant consideration and causes prejudice to the defendant even where there is nothing to suggest that the School could not meet any verdict.

186 As to delay, I accept the plaintiff’s explanation. It was on 17 March 2016 when s 64 of the Act commenced that there was no longer any limitation for child abuse action. This meant that the plaintiff’s claim was no longer statute barred and it has therefore been brought within time.

187 It is true that the School has to surmount a “high bar” to obtain a permanent stay of proceedings and it should only be orders in exceptional circumstances. In my opinion, the inquires made by the school were reasonable and notwithstanding those inquires, the school cannot meaningfully deal with the claim against it.

Conclusion

188 There is a significant lack of records. The plaintiff can give evidence to the alleged sexual assaults but the alleged perpetrator has passed away. A number of witnesses who could give meaningful evidence have died and those who have not, are unable to shed light on the veracity of the plaintiff’s allegations. The plaintiff’s preparatory school records cannot be located, and there is no statement of duties or organisational charts that relate to Reverend Sandars. Crucially there is no report of any alleged sexual abuse by Reverend Sandars in relation to the plaintiff or indeed any other student. There is also a lack of insurance cover.

189 It is therefore my view that despite making extensive enquires, the School is unable to meaningfully deal with the claim and a continuation of the proceedings would be unjustifiably oppressive and manifestly unfair to the defendant. This is in my opinion, a regrettable conclusion, however these are exceptional circumstances. A permanent stay of proceedings should be granted to the defendant.

Result

190 A permanent stay of these proceedings is granted.

Costs

191 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant’s costs on an ordinary basis.

The Courts orders:

(1) A permanent stay of these proceedings be granted.

(2) The plaintiff is to pay the defendant’s costs.

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