Trustees of the Christian Brothers v Colbert (a pseudonym) [2025] VSCA 122 (on AUSTLII).
Leave to appeal against a refusal of a stay of proceedings in this matter was granted, but the appeal was dismissed. The decision was a joint judgment of Beach, Kennedy and Kaye JJA.
The child abuse was alleged to have been perpetrated more than 70 years ago by two now deceased Christian Brothers. They died before any allegations could be put to them. One of the brothers had no other complaints made against him and the other had one complaint made after his death.
The court observed that the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. ([70]).
The defendant’s submission that GLJ does not stand for the proposition that impoverishment of evidence is no longer a relevant factor to be considered in an application for a permanent stay of a proceeding involving child abuse is undoubtedly correct. If the impoverishment of evidence caused by the passing of time would (not might) prevent a fair trial irrespective of the potential application of the range of principles and techniques of the common law being available to a court, then principle dictates that such a proceeding be stayed. ([75]).
Interestingly, the court noted at [80] (emphasis added):
The plaintiff’s claim that he was physically and sexually abused by Brother North and Brother Archer is heavily dependent upon the evidence of the plaintiff. As matters currently stand, there is no other evidence which either party is able to call on that issue. The defendant’s defence of this issue is plainly hampered by the fact that Brother North and Brother Archer died many years ago.
However the court was of the view that the plaintiff’s case was capable of being defended by reference to the plaintiff’s cognitive deficits and by use of “the principles and techniques available to the trial judge to deal with the evidentiary imbalance”. At [81] the court referred to the matters mentioned in Willmot:
First, courts recognise that the degree of satisfaction required under the civil standard of proof may vary according to the gravity of the fact to be proved. Second, all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. Third, a court is not bound to accept uncontradicted evidence and the ‘facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied’. Fourth, courts are mindful that ordinary human experience exposes that human memory is ‘fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time’. And fifth, where a claim is based upon an interaction with a deceased person (or involving a deceased estate) the court will scrutinise the evidence very carefully.
The court held that this case was not an exceptional one so a stay should not be granted.
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