DC v McDonnell [2017] NSWSC 1403

Supreme Court New South Wales

Medium Neutral Citation: DC v McDonnell [2017] NSWSC 1403 Hearing dates: 13 October 2017 Date of orders: 13 October 2017 Decision date: 13 October 2017 Jurisdiction: Common Law Before: Garling J Decision: (1) Notice of Motion of the plaintiff filed 9 October 2017 is dismissed. (2) Order the plaintiff to pay the defendant's costs of the Motion. Catchwords: CIVIL PROCEDURE – motion to amend Statement of Claim – historic allegation of sexual abuse – where key witnesses deceased – where no explanation for lateness of amendment – interests of justice Legislation Cited: Not Applicable Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 The Queen v Edwards [2009] HCA 20; (2009) 83 ALJR 717 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: DC (P) Kevin Sylvester McDonnell (D) Representation: Counsel: J Masur (P) L Gyles SC (D)

Solicitors: Porters Lawyers (P) Makinson d'Apice (D) File Number(s): 2014/300918 Publication restriction: Not Applicable

EX TEMPORE Judgment 1. Application has been made to amend the Further Amended Statement of Claim in these proceedings by the addition of the words "including a previous complaint of sexual abuse of a student at the school by Evans" in paragraph 14A of the Further Amended Statement of Claim, and by the addition of paragraphs 14B through to, and including, 14I. As well, relating to those amendments, are particulars of breach of duty pleaded in subparagraphs 15(s) and (t). 2. The proceedings were commenced in 2014 by Statement of Claim filed on 14 October 2014. The cause of action pleaded arose from an allegation that during 1985, while the plaintiff was a student at Edmund Rice College in Wollongong ("the school"), he was sexually assaulted by Brother Michael Evans, who was either a teacher or else the principal at the school. 3. The plaintiff claims that the Christian Brothers Order and various members of its Province Council and past Provincials were liable directly to him for breach of a non-delegable duty and were also vicariously liable to him for the acts of Brother Evans. 4. As I understand the likely issues in the proceedings, the principal issues will be whether, having regard to the conduct of Brother Evans, the defendants ought be held to be vicariously liable for the consequences of that conduct or, alternatively, whether the defendants, by reason of such positions as they held at the relevant time, owed a non-delegable duty to the plaintiff with respect to his personal safety. 5. In December 2016, without opposition, the plaintiff was granted leave to file a Further Amended Statement of Claim. That pleading introduced for the first time, paragraph 14A which read as follows: "By 1985, the first, third, fourth, fifth and sixth defendants and Needham by themselves, their servants and/or agents were aware or ought to have been aware of the risk to children under their care of childhood sexual abuse by teachers and/or clergy at the Christian Brothers schools." 1. The pleadings of breach of duty against the defendants included allegations which derive from the pleading in paragraph 14A, to which I have just referred. For example, it is alleged as part of the breach of duty, that the defendants failed to institute and maintain a system of mandatory reporting of child abuse, and that the defendants failed to institute and maintain a programme to educate children of the school in relation to their right to be free from sexual abuse and to report any sexual abuse to an appropriate designated person or persons. 2. The amendments which are sought wish to particularise a discrete incident of alleged sexual abuse by Brother Evans of a student who attended the same school as the plaintiff at the time the plaintiff attended the school. Although the abuse was said to have occurred away from the physical environment of the school, the allegation is that it occurred in the context of a teacher/pupil relationship. 3. It is alleged that, first, Brother Evans sexually assaulted the victim; secondly, that about a month later the victim reported the assault to the Bishop of the diocese of Wollongong, Bishop Murray; thirdly, that Bishop Murray informed the then Provincial of the Christian Brothers of his 'serious concerns' about Brother Evans; and finally that, having been so informed, the Provincial did not take any action to remove Brother Evans from his position at the school. 4. The source of this specific pleading is evidence given to the Wood Royal Commission in April 1996 by Bishop Murray. The evidence before me does not suggest that either the first defendant, who became the Province leader of the relevant Christian Brothers Province on 11 April 1984, or his predecessor, Brother Francis Garvan, were asked to give any statement to the Wood Royal Commission about this incident and their knowledge, if any, of it. Nor were they present either themselves or via their legal representatives when the evidence was given at the Wood Royal Commission. 5. However, I'm prepared to infer that as the evidence of Bishop Murray was not given confidentially to the Wood Royal Commission, there was, or else would have been, a good deal of publicity about the evidence generally, including the activities of Brother Evans before the Wood Royal Commission. 6. It is not clear on the evidence what, if any, enquiries were made at that time by the Christian Brothers with respect to those allegations. However, what is clear is that none of the Provincials were asked to provide a statement to the Wood Royal Commission, or to undertake any other factual investigations to assist the Commission. 7. The present proceedings commenced in 2014. At that time, Brother Garvan was alive. He has since died, on 4 March 2016. Accordingly, to the extent he was the relevant Province leader referred to by Bishop Murray, such evidence as he may be able to give is now entirely unavailable to the defendants. 8. The first defendant, who was the other Province leader who may have been able to give evidence, denies having any conversation of the kind which Bishop Murray gave evidence about. Bishop Murray himself is dead, having died before the commencement of proceedings on 21 April 2013, and I am informed from the Bar table, and without objection, that Brother Evans committed suicide some time in the early 1990s.