By: Richard Leder, Samantha Saad and Michelle Rich
Domenic Colbert (a pseudonym) v Trustees of the Christian Brothers [2024] VSC 309
At a glance
On 13 June 2024, the Supreme Court of Victoria delivered its decision in Domenic Colbert (a pseudonym) v Trustees of the Christian Brothers [2024] VSC 309, dismissing the defendant’s application for a permanent stay.
The decision of Justice O’Meara has articulated the “new world” standard that institutional defendants must meet, despite the inevitable lack of evidence which the passing of time occasions. It has been made clear that if a claimant is able to sufficiently identify their alleged perpetrator, there are very few occasions, if any, which would convince the Court to stay a proceeding.
The facts
The plaintiff, referred to by the pseudonym of Domenic Colbert, alleged that he was sexually abused by two brothers within the Congregation of the Christian Brothers (Brothers) from 1952 to 1955, from the age of 11 until 14, whilst a student at St Paul’s Technical College in Ballarat (College). Colbert sued the Brothers in the Supreme Court of Victoria, alleging that they were liable to him in negligence or were vicariously liable for the abuse by the alleged perpetrators.
The Brothers sought a permanent stay of proceedings on the basis that a fair trial could no longer be held due to the significant passage of time since the alleged abuse, one of the alleged offenders having died in 1960 and the other in 1997, no history of complaints against one brother, and a single prior complaint against the other brother, which was made 11 years after he died and did not relate to the period of that perpetrator’s service at the College.
The defendant’s case
The defendant emphasised that there were exceptional circumstances surrounding the plaintiff’s claim and it should be distinguished from GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (GLJ)1, which we covered here.
The defendant outlined that the case involved “much more than the mere passing of time”, noting that:
- all potential witnesses, including the one individual who had previously made a complaint about one of the perpetrators were deceased
- there was medico-legal evidence to suggest the plaintiff was affected by “cognitive decline” and there were “material contradictions” in his account of the alleged abuse
- the defendant knew nothing about the College and was therefore unable to be cross-examined regarding the circumstances surrounding the alleged abuse, and
- given the limitations on the documentary evidence, oral evidence from potential witnesses was of great importance, but no such witnesses were alive.
As a result of these factors, a situation of “practical impossibility” that precluded the defendant from participating in the hearing created exceptional circumstances, and this left the defendant “utterly in the dark”.
The plaintiff’s case
The plaintiff emphasised that the defendant’s application amounted to no more than what was the “common and expected effects of the continuation of time” and the conditions relied on ought not to be accepted as exceptional circumstances, in which the Court should exercise its powers to grant a permanent stay.
The decision
Justice O’Meara found in favour of the plaintiff and dismissed the defendant’s application for a permanent stay, specifically noting that all or most of the features relied upon by the defendant amount to no more than the inevitable impoverishment of evidence occasioned by the passage of time – which the majority in GLJ stated cannot amount to ‘exceptional circumstances’.
His Honor deferred to the majority in GLJ to identify the “real issue” to be considered when a stay application is considered by the Court, namely whether holding a trial and rendering a verdict would be incongruent with the fundamental norms of the adversarial system of justice.
In that regard, Justice O’Meara noted the following:
- the plaintiff had identified his claim with sufficient specificity
- there was a significant amount of relevant documentary evidence which was available
- there are many reasons why the deceased witnesses would not have been called to give evidence
- there were avenues of investigation which the defendant did not pursue, including making enquiries of former students of the College concerning the information that was unknown to the defendant.
In light of this factual matrix, it was clear to His Honor that the defendant was not “utterly in the dark” and, in fact, had a range of meaningful defence points available to it.
The implications
This is the first expression under the “new world order” of applicable legal principals since the decision of GLJ in November 2023.
The Supreme Court’s decision to dismiss the defendant’s application for a permanent stay demonstrates just how high the bar is set for what is considered an “exceptional case”. Justice O’Meara’s decision provides some further guidance to practitioners in respect of the extent of investigations which ought to be undertaken in matters where circumstantial information is unknown.
It also reiterates the majority decision of GLJ that claimants must prove their case to a Briginshaw standard, despite the growing sentiment that a “reverse onus” exists for institutional defendants in these kinds of claims, particularly in light of the eradication of historical evidence bearing little weight in contradicting a claimant’s evidence.