As we all may know, permanent stay of proceedings of historical abuse claims is currently a live topic in this area of law, and it is important that both survivors and practitioners are kept up to date on the Courts decisions and commentary in these application hearings.  

On 27 April 2023, the New South Wales Supreme Court provided a decision in the matter of O’Callaghan v Trustees of the Marist Brothers [2023] NSWSC 432. In this matter, the defendant (the Trustees of the Marist Brothers) filed an application seeking a permanent stay of the plaintiff’s (Brian Noel O’Callaghan) proceedings.  

In summary, the plaintiff commenced court proceedings on 6 June 2022 against the defendant for alleged sexual abuse suffered by the plaintiff when he was a student and a boarder at St Francis, a school operated by the defendant, by the school principal, Brother Calixtus in around 1963 (when the plaintiff was around 12 years of age). The plaintiff sought damages for breaches of common law and statutory duties by the defendant, and for intentional tort on the part of the perpetrator in which the plaintiff claimed that the defendant was vicariously liable. On 15 September 2022, the defendant filed an application to permanently stay the plaintiff’s proceeding, submitting that: 

a) The relevant events (the abuse) occurred about 60 years ago; 

b) The perpetrator, Brother Calixtus, died in 2020; 

c) Prior to his death, Brother Calixtus suffered from cognitive difficulties; 

d) The defendant never had the opportunity to put the plaintiff’s allegations to Brother Calixtus; 

e) No records have been located to assist the defendant in responding to the claim, to the extent where the defendant cannot even confirm that the plaintiff was in fact a boarder at St Francis; and 

f) Consequently, the defendant is not able to meet, defend or respond to the plaintiff’s claim, and to allow the plaintiff’s claim to proceed would be “manifestly unfair” to the defendant.  

 

The plaintiff submitted the following: 

a) That there has not been a “full and frank disclosure of all material”; 

b) That the investigations conducted by the defendant have been “perfunctory”; 

c) That the defendant has failed to distinguish between the admissibility of evidence and the weight of evidence; and  

d) That the facts in this particular case can be distinguished from the authorities relied upon by the defendant, primarily because the perpetrator was alive when the allegations were made.  

 

Prior to being ordained with the title Brother Calixtus, the perpetrator was known as Mr Kevin Francis Hogan. Since his ordination, the perpetrator was subject to 19 other sexual abuse claims, three of which for abuse suffered during 1948 to 1958 and the remainder of the allegations for abuse suffered between 1964 and 1972.  

The earliest suggestion of plaintiff’s allegations to the defendant was through an email sent by the plaintiff’s brother on 28 May 2019.   

Of importance, the Court at [10] provided (and confirmed) that “Each case is of course to be decided on its own facts.” 

 

In relation to the defendant’s disclosure, the Court provided at [23] to [26]: 

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. 

 

In relation to the allegations being put to the perpetrator and the perpetrator’s capacity, the Court provided at [27] to [29], and [32] to [33], and [36]: 

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. 

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. 

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. 

 

Of note, the Court provided at [43] and at [52]:  

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. 

The plaintiff as an unreliable historian gives no weight to the defendant’s assertion that it cannot have a fair trial. 

 

Ultimately, the Court dismissed the defendant’s application to permanently stay the plaintiff’s proceedings and ordered that the defendant pay the plaintiff’s costs of the application.  

Further updates in relation to the stay of proceedings of historical abuse cases can be found in other articles on our website written by Emily Wright and our office.  

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today. 

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