Permanent stay of proceedings: judgment in BRJ v The Corporate Trustees of The Diocese of Grafton

02 September 2022

Gillian Davidson
Partner
Sparke Helmore Lawyers

Gillian Davidson
Partner
Sparke Helmore Lawyers
t: +61 2 9373 3535

Gillian specialises in general commercial insurance with deep expertise in liability claims. As a senior partner, Gillian leads Sparke Helmore’s national liability team of over 50 lawyers. Regularly acknowledged in legal directories, Gillian was most recently recognised in the Legal 500 Asia Pacific edition 2022, where she was valued as "extremely experienced and [someone who] always gets to the crux of the matter". Gillian is passionate about the contribution that policies related to Diversity and Inclusion make to the wellbeing of employees and clients. She is the Chair of the firm's Diversity & Inclusion Advisory Committee. Her commitment to the promotion and development of women is well known. She is the founding partner of the firms Six Degrees Network, which provides leadership, mentoring and networking opportunities highlighting the inclusion of women. She has also been a member of the firm’s Board. Gillian is the current Chair of Global Insurance Law Connect (GILC). GILC is a diverse global network of boutique law firms with insurance expertise. Each member firm is embedded into its own insurance market and has deep local knowledge, aimed at helping clients with complex cross-border legal challenges. Each of the member firms has a real passion for the industry; the network consists of 21 firms in 23 countries spread across five continents, and the footprint touches every area of insurance law.

Emily McKeowen
Partner
Sparke Helmore Lawyers

Emily McKeowen
Partner
Sparke Helmore Lawyers
t: +61 2 9260 2404

Emily is a highly regarded insurance litigator with 20 years of experience in general liability claims (personal injury, property damage and product liability). Emily is recognised for her pragmatic, proactive, commercial and technical approach to claims management and client solutions.

On 2 September 2022, his Honour Justice Garling of the Supreme Court of NSW delivered judgment in BRJ v The Corporate Trustees of The Diocese of Grafton [2022] NSWSC 1077.

The Trustees were granted a permanent stay of the proceedings brought by BRJ who alleged he was sexually abused whilst billeted to clergyman Alan Kitchingman and his wife during the 1974-1975 Christmas holidays.

Garling J ordered that both the Trustee’s cross-claim against Mr Kitchingman and BRJ’s proceedings against the Trustees be permanently stayed. In deciding to grant a permanent stay, his Honour took into consideration the following matters:

Capacity—By reason of his Alzheimer’s disease, Mr Kitchingman is unable to provide instructions or respond to the cross-claim.
Ability to conduct investigations—At no time prior to service of the cross-claim was Mr Kitchingman confronted with BRJ’s allegations of abuse and provided with an opportunity to respond.
Availability of evidence—
- There were no witnesses to the abuse other than BRJ and Mr Kitchingman.
- There are no documents that support BRJ’s allegations of abuse.
- The Diocese could not meet an allegation that they were vicariously liable where there was very little available evidence of the billeting arrangements and it was not known how the Plaintiff was allocated to Mr and Mrs Kitchingman.
To the extent that other documents relating to Mr Kitchingman’s conduct may have been relied upon as tendency evidence, the Trustees are disadvantaged because of their inability to independently obtain any material in response to those matters.

Implications

The decision of Garling J continues in the line of a number of recent decisions granting permanent stay. His Honour’s decision highlights the importance placed on the availability of records of complaint and key witnesses, including the availability of the alleged perpetrator or defendant to respond to the allegations.

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