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 5 May 2023, the New South Wales Supreme Court provided a decision in the matter of Peters v Trustees of the Marist Brothers [2023] NSWSC 475. In this matter, the defendant (the Trustees of the Marist Brothers) filed an application seeking a permanent stay of the plaintiff’s (Mark Peter’s) proceedings.  

In summary, the plaintiff commenced court proceedings on 24 November 2021 against the defendant for alleged sexual abuse suffered by the plaintiff when he was a student at Marist College Kogarah by Francis William Cable between 1969 and 1970. 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.  

In 2015, Francis Cable was sentenced to an imprisonment term after being convicted for sexually abusing male students whilst he was a teacher at various Marist Brothers schools. Francis Cable died in custody on 12 September 2022. On 23 October 2020 (almost two years prior to Francis Cable’s death) the plaintiff put the defendant on notice of his civil claim. The defendant took no action to contact Francis Cable. The defendant submitted that a “leadership” member of the Marist Brothers was unsuccessful in their attempt to speak with Francis Cable in 2015 regarding an unrelated matter, therefore, the defendant decided that any further attempt in contacting Francis Cable would be unsuccessful. Following the plaintiff filing proceedings, the defendant continued to take no steps in contacting Francis Cable.  

On 25 November 2022, the defendant filed an application to permanently stay the plaintiff’s proceeding predominately on the basis that a fair trial is not possible as a result of: 

  • The death of the perpetrator, Francis Cable; 
  • The effluxion of time since the alleged abuse (over 52 years), and the likelihood of other witnesses being “dead or unavailable”; 
  • The absence of documentary evidence in connection with the claim; and 
  • In 2018, the plaintiff has brought earlier proceedings against the State of New South Wales for historical sexual abuse suffered whilst detained at Albion Street Detention Centre and, throughout this claim, the plaintiff denied any other history of sexual abuse.  

In relation to the death of Francis Cable, the Court provided at [64] to [65]: 

…I am unable to accept the defendant’s submission…for the following reasons: 

  1. First, the context, and timing, of the approach is not unimportant: the approach was by letter dated 14 April 2015 to Cable’s Legal Aid lawyer in connection with an unrelated matter in 2015…and it was after his conviction for historic child sex offences on 17 March 2015…but before Cable was to be sentenced. In those circumstances, and at that time, it is quite possible that Cable did not wish to speak with a member of the Marist Brother’s “Leadership Team”. Although the solicitor for the defendant did not accept, when cross-examined, that, pending sentencing, it would have been a “sensitive period” for Cable, in my view, that is a fair inference to draw (and I do). At a minimum, in my view, it should have been recognised that it might have been – thus necessitating further, but later, contact once the plaintiff’s claim was notified in October 2020. 
  2. Secondly, although Cable refused to speak to a member of the Marist Brothers’ “Leadership Team”, the letter said nothing about meeting with, say, a lawyer or an investigator – a matter that is apparent from the letter itself, in my view…. The 16 April 2015 letter was not expressed in terms of Cable refusing, in all cases and in all situations forevermore, to speak to anyone in connection with any and all allegations made against Cable. In those circumstances, I cannot accept that the terms of the 2015 Legal Aid letter was such that it discharged the defendant from making any further attempt to contact Cable, and put the allegations made by the plaintiff to him and to attempt to secure his evidence. 
  3. Thirdly, it is important to recognise, in my view, that following the initial convictions… Cable thereafter pleaded guilty to all other charges brought against him in connection with him sexually abusing young boys. That he did so is, I find, highly suggestive that Cable, if contacted, may well have agreed to discuss what was alleged by the plaintiff. So too is another matter. Although the evidence in connection with his sentencing post 2015 did not include the formal orders, based upon the sentence imposed by Whitford SC DCJ, and by Ellis SC DCJ, it appears that Cable was ineligible for parole up until at least some time in 2029. By that date Cable would have been approximately 97 years of age. In those circumstances, therefore, Cable undoubtedly knew that he would likely remain in custody for the balance of his life. In my view, this is some evidence that, particularly with the pleas of guilty entered, suggests that Cable, if contacted, may well have agreed to discuss what was alleged by the plaintiff. 
  4. …At an absolute minimum, I consider that the defendant should have attempted – on an ongoing basis – contact with Cable following the letter notifying the defendant of the plaintiff’s intent to commence proceedings in 2020, and those steps should have been intensified once proceedings had been commenced… 
  5. Fifthly, the defendant was well aware of Cable’s age – he was 83 years of age at the time of sentencing, approximately 88 years of age at the time that the defendant was notified of the intent of the plaintiff to bring a claim in October 2020, and approximately 89 years at the time the plaintiff commenced proceedings in this Court. Given Cable’s age, if it were discovered (or even believed) that Cable would not assist in meeting the defendant, their lawyers or investigators, to deal with what was alleged by the plaintiff then immediate steps should have been taken to ensure that Cable’s evidence was given – either by having the matter listed for an urgent hearing (which undoubtedly would have been ordered, and heard) or, possibly, for the taking of evidence on commission… I do not accept that the defendant can simply stand back and do nothing, which is what has occurred here. 

The defendant should not, in my view, have the benefit of its own inaction: the defendant’s alleged inability to meaningfully deal with the claim is, I find, a product of its own unreasonable failure to attempt to make contact with Cable, and to take steps to secure his evidence. In my view, to accept otherwise would, adopting what was said by Bathurst CJ in Anderson at [494], “itself bring the administration of justice into disrepute”. 

In relation to the effluxion of time, the Court provided at [68]: 

In my view, although highly relevant, I am unpersuaded that the effluxion of time of itself justifies the relief that the defendant seeks, nor do considerations of presumed prejudice. When regard is had to my earlier findings, in connection with the failure of the defendant to pursue – reasonably – means to secure Cable’s version as to what was alleged or his evidence as to those matters, I am firmly of the view that the effluxion of time, and any presumed prejudice, does not justify the relief that the defendant seeks. 

In relation to the unavailability of witnesses and absence of records, the Court provided at [72] to [73], [75] to [78], [83], and [85]:  

The defendant argued that a number of specific issues in the matter that arise for consideration are unable to be dealt with by reason of lack of records and/or witnesses. Specifically, as identified during submissions, those issues are:  

      1. whether the events in question occurred, or not;  
      2. whether Cable taught in the secondary school or in the primary school; and  
      3. whether the defendant was on notice of, or had knowledge of, Cable’s aberrant conduct prior to the time that Cable is alleged to have committed his offences against the plaintiff. 

The "events"

In relation to whether the events in question occurred, it is true that – now – by reason of the death of Cable, the defendant will not have the opportunity to gain a version from Cable. But that is a consequence, I have earlier found, of the defendant’s failure to take steps to make contact with Cable, following the notification of the plaintiff’s claim in 2020…

To the extent that the submission extends beyond Cable – and to the suggested lack of witnesses or documents in connection with the offence – I do not accept the submission. In my respectful view, it is unrealistic to think that there would be “witnesses”: the plaintiff’s version of the offending conduct, contained in his evidentiary statement…suggest the acts were surreptitiously performed…

Furthermore, to be clear, the plaintiff’s evidentiary statement makes no reference to the plaintiff making a complaint in connection with Cable’s conduct at any relevant time, nor does it form part of the pleaded claim that the plaintiff intends to bring.

In the circumstances described in [76]-[77], above, there is no basis to find there were documents created in connection with the “offending conduct”, but those documents are now lost…

Whether Cable taught primary school

I do not consider that this matter, on its own or in connection with other matters raised by the Marist Brothers, justifies a permanent stay. That is because there is, in my view, sufficient evidence available to the Marist Brothers to contest this issue.

Actual or structural knowledge

…on the documents that are in existence, the Marist Brothers can contest the issue about its “notice” – or lack thereof – of Cable’s behaviour. To the extent that the submission went beyond this, extending to a submission that documents are not available that otherwise, possibly might have been, I do not accept it.

In relation to the 2018 proceedings brought by the plaintiff, the Court provided at [90] to [91]:

Ultimately, during submissions, it was argued by the defendant that this issue reinforces the importance of Cable’s evidence at any trial. To the extent that it remained as a separate, and freestanding, submission, I do not accept that the suggested fragility of the plaintiff’s case, or there being an inconsistency, is a matter that on its own, or with other matters, justifies a permanent stay. That is for the following reasons.

First, I have carefully considered this evidence, but I do not consider that it is appropriate to deal with the point akin to a defendant seeking summary relief: the plaintiff may well have an explanation for these matters…and it is appropriately a matter that should be reserved for trial. Secondly, in connection with the use of medical histories, particularly on an application of this kind (and without hearing from the plaintiff, and having a full response), I am mindful of, and have had regard to, what was said in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2] – essentially giving caution to the manner in which medical histories should be used as a means to demonstrate inconsistency – as a further reason not to accede to the defendant’s submission. Thirdly, in relation to any inconsistency… the material that is the cornerstone of that aspect of the defendant’s case…is available for use at trial by the defendant.

Ultimately, the Court was not satisfied that the circumstances were so exceptional as to require an order that the plaintiff’s proceedings be permanently stayed and, therefore, dismissed the defendant request for a permanent stay. The Court further ordered that the defendant pay the plaintiff’s costs of and incidental 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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