Supreme Court New South Wales Medium Neutral Citation: Peters v Trustees of the Marist Brothers [2023] NSWSC 87 Hearing dates: 10 February 2023 Date of orders: 10 February 2023 Decision date: 10 February 2023 Jurisdiction: Common Law Before: Garling J Decision: Dismiss the application by the plaintiff for an adjournment of the hearing of the Notice of Motion for a permanent stay, presently fixed for 10 March 2023. Catchwords: CIVIL PROCEDURE — Hearings — Adjournment — where the defendant applies for a permanent stay of proceedings — where the defendant's application is listed for hearing — where the High Court of Australia granted special leave to appeal in a case concerning an application for a permanent stay of proceedings — where the High Court of Australia has not yet heard the appeal — where the plaintiff applies for an adjournment of the hearing of the defendant's application until after the High Court of Australia delivers judgment in the appeal — where the defendant did not advance any prejudice to it if the plaintiff's application was granted — whether to grant the plaintiff's application — where the plaintiff's application refused Legislation Cited: Civil Procedure Act 2005 Limitation Act 1969 Cases Cited: Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 The Council of Trinity Grammar School v Anderson [2019] NSWCA 292 Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 Texts Cited: Not Applicable Category: Procedural rulings Parties: Mark Peters (P) Trustees of the Marist Brothers (D) Representation: Counsel: S McCarthy (P) C Lee (D) Solicitors: Koffels Solicitors & Barristers (P) Carroll & O'Dea Lawyers (D) File Number(s): 2021/334681 Publication restriction: Not Applicable EX TEMPORE JUDGMENT 1. This is an application by the plaintiff who is known by a pseudonym as Mark Peters. The matter is listed on 10 March 2023 for the hearing of a Notice of Motion brought by the defendant to permanently stay the proceedings. Today, the plaintiff applies for an adjournment of the hearing of the Motion. Relevant Background 1. The proceedings were commenced in 2021 in circumstances where the plaintiff claims damages for the psychological consequences of sexual assault which he says occurred many years ago whilst he was a school student attending a named school operated by the Marist Brothers for whom, it is accepted, the named defendant is legally liable. The sexual assault is alleged to have occurred in 1969 and 1970 when the plaintiff was in either or both Year 5, or Year 6, at primary school. 2. I am informed and accept that in 2015, the perpetrator was sentenced to a lengthy term of imprisonment for sexually assaulting 17 victims. At that point in time, attempts were made by the solicitors for the defendants to interview the perpetrator about his conduct. The perpetrator declined to be interviewed and informed the solicitors for the defendant that he did not wish to be contacted by them or their client at all. 3. Subsequently to that interaction, and prior to the commencement of the current proceedings, the perpetrator died. 4. The defendant makes the application for a permanent stay upon the basis that having regard to all of the facts and circumstances, including but not limited to the inability of the defendant to obtain a witness statement from the now deceased perpetrator, there cannot be a fair trial of the proceedings. Legal Considerations 1. There have been a number of decisions of the Court of Appeal and at single instance where permanent stays have been granted or refused in claims involving damages for sexual abuse which occurred many years ago. 2. Claims of this kind can now be litigated because as a consequence of the report of the Royal Commission into Institutional Responses to Child Sexual Abuse ("the Royal Commission"), parliaments around Australia have expressly removed all limitation periods applicable to claims made by those who were the subject of child sexual abuse (or child physical abuse or "connected abuse"). 3. The terms of the amendments in NSW to the Limitation Act 1969 specifically preserve the power of this Court to grant a stay. Section 6A(6) of the Limitation Act provides that the 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 any Commonwealth Act), rule of court, practice note or practice direction. 1. A note is added to this effect: "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.". 1. It is fair to say that in a number of relatively recent decisions, the Court of Appeal has set out the principles which apply to the grant of a permanent stay. 2. In Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 ("Moubarak"), the President of the Court of Appeal, Justice Bell, now the Chief Justice, set out those principles at [71]. It is appropriate to observe that in setting out those principles, his Honour said that "a permanent stay should be granted when the interests of the administration of justice so demand" and "proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people". 3. It is not to be doubted that in determining applications for permanent stay, a relevant fact is that the perpetrator or the alleged perpetrator has not given any account of themselves and is not able, whether through incapacity or death or for some other reason, to give such an account. There will always be a question as to what weight such a finding bears in the assessment of all of the facts and circumstances relevant to the application for a permanent stay. 4. It is also of relevance, as the decisions show, that attention is paid to the amendments to the Limitation Act. In making the amendments, Parliament has permitted claims which might be described as historic, and which would otherwise have been prohibited by the Limitation Act, to now be brought. Application for Adjournment 1. The most recent decision of the Court of Appeal concerning a permanent stay is Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 ("GLJ"). In that case, the Court of Appeal overturned the decision of the trial Judge not to grant a permanent stay, and ordered that those proceedings be permanently stayed. 2. The application to adjourn the hearing of the application for a permanent stay in these proceedings is based upon the fact that GLJ has been the subject of a grant of special leave to appeal to the High Court of Australia. The plaintiff GLJ (who was the unsuccessful respondent in the Court of Appeal proceedings), applied for special leave to appeal to the High Court of Australia. The High Court granted special leave at a hearing which took place on 18 November 2022. 3. After the High Court granted special leave, the parties estimated that the matter would finish within a day of argument in the High Court. 4. The plaintiff placed material before this Court that indicates that whilst the High Court has not yet fixed a hearing date for the appeal, it is possible that the matter could be listed in the High Court's April sittings, which take place in the second and third weeks of April or, if not, in the May sittings which take place in the second and third weeks of May. 5. The current usual course in the High Court, and counsel agree, is that the High Court would reserve its decision and sometime later deliver it. It is not appropriate for this Court to speculate when any judgment may be delivered. Much will depend upon the complexities of the issues raised during the hearing and the High Court's workload. 6. The plaintiff submits here that it is on the cards, or else is likely, that the High Court in determining the appeal in GLJ (regardless of whether the appeal is upheld or dismissed) will address two matters of significance to this proceeding. 7. The plaintiff submits that the two matters of significance are as follows: first, what role the unavailability, either because of illness or death, of a perpetrator should carry weight in a Court's assessment of the factors relevant to the grant of a permanent stay; secondly, the relevance and weight which the Court should give to the policy standing behind the legislative amendments following the report of the Royal Commission, by which limitation periods were abolished. 8. GLJ's written submissions in the High Court, which are publicly available, do support the plaintiff's submission that those two matters will at least be the subject of submissions to the High Court. What role those matters thereafter will have in any judgment of the High Court is unable to be determined. 9. I have also considered the transcript of the oral argument on the special leave application. It is clear from the GLJ's written submissions to the High Court, and from that transcript, that there is no attack made by the plaintiff on the principles which have been articulated in the cases in the Court of Appeal to which I referred earlier, particularly Moubarak, and also the judgment in The Council of Trinity Grammar School v Anderson [2019] NSWCA 292 ("Anderson"). 10. The other relevant matter is that, in my experience and from an observation of the other decided cases in this area, particularly the decision of the Court of Appeal in Anderson, the question of whether or not a permanent stay ought be granted is a fact-rich determination. By that I mean that the facts upon which one party relies to seek a permanent stay and the other party relies to resist it will vary in each case. 11. Accordingly, the evaluative exercise which a Court undertakes before engaging in a discretionary determination as to whether it is appropriate to grant an order permanently staying the proceedings will, and necessarily must, vary significantly from case to case. I put to one side, of course, the circumstances where one might have two victims of the same perpetrator whose claims arise out of the same circumstances. 12. Counsel for the plaintiff argues that having regard to the possibility that the High Court's judgment in the GLJ appeal may affect, either as a matter of principle or generally, the way in which applications for a permanent stay may be determined, the appropriate course is to adjourn this application until such time as the High Court has delivered its decision. Then, once the parties have had a chance to read and analyse the decision and take instructions, a decision can be made as to whether to relist the matter or whether the parties find themselves in agreement as to what, if any, relief ought be granted on the defendant's motion. 13. Counsel for the plaintiff submits that it would be in the interests of the administration of justice to adjourn the matter because of those facts, and also because of the savings of legal costs to the parties from not engaging in the hearing of the application for a permanent stay in a few weeks' time. He also submits that there would be a saving of judicial resources in the determination of a motion which might not otherwise be required to be determined. Further, counsel for the plaintiff submits that such a course may avoid the need to relist any application for further argument or, alternatively, may avoid the need for the losing party on the application to seek leave to appeal to the Court of Appeal on the basis of a different state of the law or different relevant facts as a consequence of the High Court's decision. 14. The defendant submits that the matter should remain in the list and be argued, but it does not advance any specific prejudice to it if the matter were to be adjourned. It is inherent in the plaintiff's submissions that he must accept that any delay caused by an adjournment will result in a significant delay to any trial in this matter. Discernment 1. It seems to me that if the plaintiff's application is upheld, there would be an effect on other litigants in this Court to which I am entitled to have regard. Namely, every case in which there is a similar application for a permanent stay would have the consequence the plaintiff urges i.e., all applications for a permanent stay would not be heard and would abide by, or would await, the High Court's judgment in GLJ. 2. In making this decision, I am obliged to have regard to the terms of s 56 of the Civil Procedure Act 2005 ("the Act". That section requires the Court in making an order of the kind I am being asked to make here, to give effect to the overriding purpose set out in s 56(1) Civil Procedure Act, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Another matter which is relevant to the determination of this application is, as is publicly well known and accepted, that the very existence of litigation and the time it occupies before a resolution can adversely affect a plaintiff's psychological trauma. 3. It is also of relevance that, although I have not made any factual determination, or come to any view at all about the application for a permanent stay in this case, it is not necessarily a certainty or even a high probability that such an application will be upheld. It is entirely possible that when the matter is heard in March, the Court may dismiss the application, which would result in the Court proceeding to undertake the usual case management steps to ensure that the matter is brought to finality at the earliest possible opportunity. 4. Equally, even if a permanent stay was granted, the defendant at that time may nevertheless seek to engage in a resolution of the proceedings in their entirety, because the defendant may not wish to expend any further legal costs on the matter. In other words, the fact that the motion is heard and determined one way or the other, may not ultimately require attention to be paid to, or any reliance to be placed upon, the future decision of the High Court in GLJ. 5. I accept that there may be some savings of legal costs if the hearing does not proceed on the day it is fixed, although costs will already have been incurred. However, ultimately, unless as a consequence of the decision of the High Court the defendant withdraws its application for a permanent stay, those legal costs will be likely to be incurred at some stage. 6. It is always hard in cases of this kind to resolve the competing tensions. On the one hand, a party seeks certainty of the law in respect of which the application for a permanent stay is to be heard. On the other hand, whether or not a decision at an unspecified time in the future by the High Court will have any effect on that certainty of the law is a matter of speculation. This Court then has to balance what appears at first glance to be some saving of costs with the statutory injunction to fulfil the overriding purpose of litigation in this Court. 7. Notwithstanding everything that Mr McCarthy has put on behalf of his client, I am not persuaded to adjourn the hearing of the defendant's Motion for a permanent stay. First, I am unpersuaded that there is any real likelihood that the underlying principles of law set out in Moubarak will be the subject of any challenge in the High Court. Secondly, even if that turns out to be so, the exercise that the Court will engage in, to determine all of the relevant facts relevant to this claim by this plaintiff and upon which the defendant seeks a permanent stay, will not be an exercise which is likely to be wasted. Thirdly, I am concerned about the adverse effect of a significant adjournment of the Motion, which is likely to be in the order of nine months or so. I am also concerned about the stultification of any other steps in the litigation that could be taken in the meantime, depending upon the outcome of the Motion. Finally, I am of course obliged to give effect to the legislation to the overriding purpose. 8. It is the combination of all those matters that leads me to refuse the application made by the plaintiff to adjourn the hearing of the Notice of Motion presently fixed for 10 March 2023. Orders 1. I make the following orders: 1. Dismiss the application by the plaintiff for an adjournment of the hearing of the Notice of Motion for a permanent stay, presently fixed for 10 March 2023. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2023