*Trigger warning: This blog contains explicit references to subject matter and material that may be traumatising or upsetting for survivors of institutional child sexual abuse and their families. Reader discretion is advised.
If reading this article is upsetting, or causes you emotional distress, and you would like some support and counselling, we encourage you to reach out to one of the leading support services listed below:
Beyondblue https://www.beyondblue.org.au/ 1300 224 636
MensLine Australia https://mensline.org.au/ 1300 789 978
Lifeline https://www.lifeline.org.au/ 13 11 14
In July, we published a case note on Grant v Bird  VSC 380. That piece highlighted the need for survivors of historical child sexual abuse to seek legal advice as soon as possible.
Smith v The Council of Trinity Grammar School  NSWSC 1592
Time is of the essence
This short article examines permanent stays on proceedings in circumstances where delay has resulted in relevant evidence becoming unavailable or “impoverished” – where defendants are unable to give evidence – and where delays are likely to result in the inability to have a fair trial.
Smith v The Council of Trinity Grammar School  NSWSC 1592 reinforces the need to seek legal advice and commence proceedings without delay.
In this case, a survivor of alleged institutional child sexual abuse (‘Smith’) filed a statement of claim
40 years after the alleged abuse took place, in 1981. A complaint was first raised about a school master, Reverend Sandars (‘Sandars’) about 4 years ago, by which time, Sandars and material witnesses had died.
Smith alleged breach(es) of duty on the part of Sandars and also alleged Trinity Grammar School was vicariously liable for the intentional wrongful acts of Sandars.
Crucial documents, such as Sandars’ diary, were unable to be located by the School and there were no contemporaneous records of the alleged sexual assaults.
The Court found that, it was not just the alleged sexual assaults committed by Sandars that were in issue, but also whether the school should be held vicariously liable for his actions.
The Supreme Court granted the school’s application for a permanent stay stating:
“There is a significant lack of records. The plaintiff can give evidence to the alleged sexual assaults but the alleged perpetrator has passed away. A number of witnesses who could give meaningful evidence have died and those who have not, are unable to shed light on the veracity of the plaintiff’s allegations. The plaintiff’s preparatory school records cannot be located, and there is no statement of duties or organisational charts that relate to Reverend Sandars. Crucially there is no report of any alleged sexual abuse by Reverend Sandars in relation to the plaintiff or indeed any other student. There is also a lack of insurance cover… It is therefore my view that despite making extensive enquires, the School is unable to meaningfully deal with the claim and a continuation of the proceedings would be unjustifiably oppressive and manifestly unfair to the defendant. This is in my opinion, a regrettable conclusion, however these are exceptional circumstances. A permanent stay of proceedings should be granted.”
(If you would like to read the Supreme Court’s judgment, please use the following link: https://www.caselaw.nsw.gov.au/decision/17d9852877384b0de071b1ae )
As with Grant v Bird, this case also highlights the need for survivors to move quickly if they are considering commencing a common law damages claim for psychological injury.
However, such decisions should not overshadow the significant and positive steps towards greater justice for survivors since the Royal Commission into Institutional Responses to Child Sexual Abuse (which concluded in 2017).
Although it’s not nearly enough, in four short years, we have seen a huge shift in the organisational culture and responses of institutions responsible for historical child sexual abuse. Just this week, news surfaced that the former Bishop of Newcastle, Roger Herft, is to be expelled from the Anglican Church in relation to charges that he failed to deal appropriately with allegations of child sexual abuse when he was bishop of Newcastle (1993 – 2005).