Abuse Law: Stay of Proceedings Update (Part 2)

Mr Smith sought leave to appeal against an earlier successful application made by the defendant for a permanent stay application against Mr Smith’s proceedings seeking damages for sexual abuse allegedly perpetrated in 1981 when Mr Smith was in year 6. The alleged perpetrator, Rev Sandars, died in 2012 and the alleged abuse was disclosed to the Headmaster of the school in 2017.  

There was no suggestion that there were any direct witnesses to the abuse. Mr Smith contended sufficient evidence existed which, if accepted, would likely result in his case most likely failing, thereby arguing a fair trial was possible. 

Key witnesses were deceased or unable to be located, including the headmasters who appointed Rev Sandars and who held office during the relevant period, a PE teacher who might have provided evidence of what he saw at a swimming pool, Mr Smith’s year 6 teacher and secretaries of Rev Sandars from the relevant period of time. There was an absence of documents or contemporaneous evidence dealing with the allegations, however, there were witnesses who gave evidence to the effect that they never suspected Rev Sandars of any sexual misconduct with students. The school relied on extensive efforts undertaken to find testimonial and documentary evidence relating to Mr Smith’s claim. 

The court made note of the measure of public importance attaching to cases such as these in light of the seriousness of the allegations. It also considered the 2019 case of The Council of Trinity Grammar School v Anderson [2019] NSWCA 292 involving the same school but a different alleged perpetrator, in which the court granted a permanent stay turning on the unavailability of Rev Sandars who was in that case a key witness as to whether the alleged sexual abuse took place. The court also considered The Trustees of Catholic Diocese of Lismore v GLJ [2022] NSWCA 78 and ultimately refused leave to appeal, upholding the primary judge’s decision to permanently stay the case.