By Stuart Eustice, Partner and Ashleigh Shankly, Lawyer

Background

In Trustees of the Christian Brothers v Colbert (a pseudonym) [2025] VSCA 122, the Victorian Court of Appeal was asked to determine whether O’Meara J erred in refusing an application for a permanent stay of proceedings.

Domenic Colbert (a pseudonym) (the plaintiff) commenced proceedings against the Trustees of the Christian Brothers (the defendant) claiming damages for physical and sexual abuse. The plaintiff claims to have been physically and sexually assaulted by Brother North and Brother Archer during a two year period between 1952 and 1955 when he was a student at St Pauls Technical College in Ballarat.

Trial Decision

On 25 November 2022, the defendant filed a summons seeking an order that the proceedings be permanently stayed pursuant to r23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) and/or the inherent jurisdiction of the Court. The defendant’s application for a stay was on the basis that:

1. over 70 years had passed since the alleged instances of sexual abuse;
2. the two perpetrators, Brother North and Brother Archer, were both deceased and could not provide their evidence;
3. there was an absence of contemporaneous complaints or documentary evidence to support the claim; and
4. loss or unavailability of witnesses.

After considering the evidence, the trial judge considered that in a contested trial, it could not be accepted that the defendant had no practical possibility of participating in a hearing. On 13 June 2024, the trial judge dismissed the defendants application for a permanent stay of the proceedings on the basis that the defendant had not discharged its onus of establishing that the case is an ‘exceptional’ on in that a trial of the proceeding would not be consistent with the fundamental norms of the adversarial system.

On Appeal

The defendant sought leave to appeal the judge’s order refusing to stay the proceedings, alleging that the primary judge erred by:

1. Misapplying the High Courts decision in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore[1] by applying too narrow interpretation of the test for determining whether or not exceptional circumstances exist which warrant a permanent stay; and further and in the alternative,
2. Failing to find that exceptional circumstances existed such as to warrant the grant of a permanent stay of the proceeding, and, failing to distinguish the circumstances in the present case from those in GLJ.

The defendant’s primary submission was that the primary judge misapplied the High Court’s ruling in GLJ by treating the deaths of Brothers North and Brother Archer, the plaintiff’s cognitive impairments, the loss of decades-old school records and the unavailability of key witnesses as ordinary prejudice rather than “exceptional circumstances” warranting a permanent stay for abuse of process.

The defendant argued that where the passage of time and destruction of evidence make it impossible to investigate allegations or test the plaintiff’s account the fairness of any trial is compromised.

Court of Appeal’s Decision

On appeal, it was acknowledged that if the case were to proceed to trial, it would concern circumstances and events which occurred more than 70 years ago. However, the grant of a permanent stay is a last resort and requires an ‘exceptional’ case, which is one that it is impossible for minimum necessary for a fair trial to take place. Having regard to the facts and circumstances of the case, the Court considered that the trial judge was correct to conclude that the defendant is sufficiently well placed to defend the plaintiff’s claim, such that it would not amount to an abuse of process and should not be permanently stayed.

It was held the present case was not ‘exceptional’ and the impoverishment of evidence in this case had not been shown by the defendant to be anything other than the routine and unexceptional passing of time. The Court granted leave to appeal but for the reasons outlined, considered the appeal must be dismissed.

[1] (2023) 97 ALJR 857; [2023] HCA 32 (‘GLJ’).