MXS2 v Georges River Grammar School [2023] NSWSC 529

As we all may know, permanent stay of proceedings of historical abuse claims is a very live topic in this area of law currently, and it is important that both survivors and practitioners are kept up to date on the Courts decisions and commentary in these application hearings.  

On 18 May 2023, the New South Wales Supreme Court provided a decision in the matter of MXS2 v Georges River Grammar School [2023] NSWSC 529.  

In this matter, the plaintiff commenced court proceedings in 2022 against the defendant for alleged sexual abuse suffered by the plaintiff when he was a student at St Paul’s Choi School by his grade 6 teacher, Mr Zuliani, in 1997. The plaintiff sought damages for breaches of common law and statutory duties by the defendant, and for intentional tort on the part of the perpetrator in which the plaintiff claimed that the defendant was vicariously liable. There was no contention by either party in relation to: 

  1. The duty of care owed; 
  2. That Mr Zuliani was employed at the school at the time of the alleged abuse; or 
  3. That St Paul’s Choir School was later deregistered and is now operated by the defendant.  

The defendant, however, does not admit the abuse and denies vicarious liability.  

The defendant (Georges River Grammar School) filed an application seeking a permanent stay of the plaintiff’s (MXS2, a pseudonym) proceedings.  

In support of its application for a permanent stay of the proceedings, the defendant submitted that the plaintiff’s claim is regarding alleged abuse occurred over 26 years ago in the presence of no other adults other than the perpetrator, Mr Zuliani, and, as such, the only possible contradictor is Mr Zuliani, who died before the plaintiff disclosed the allegations.  

Further, [11] provides: 

Given that the available documents contained later complaints about Mr Zuliani’s conduct, there was evidence of the existence of a system of recording complaints about a teacher implemented by the school. But none of the complaints received concerned allegations of sexual abuse. There had never been an opportunity to put this to Mr Zuliani, with the result that it would bring the administration of justice into disrepute, for the trial to proceed. This was exacerbated by the claimed negligence in his employment, over a decade earlier, which could also not be met by relevant evidence. 

At [15] to [16], the Court provided the following: 

Further, one particular of negligence advanced related to the engagement process undertaken when Mr Zuliani was employed in 1987, which it was claimed to have involved negligence in the interview process, which did not ensure that his selection was “appropriate for the protection of the welfare of the students”. 

No records that relate to Mr Zuliani’s recruitment had been found and Father Toby Wood, both the Chairman of the Board of Governors for the school and the then principal, who might have been able to shed light on this claim, had also died. In the result no evidence to deal with this aspect of the claim could be marshalled, that supporting the conclusion that it was also not possible for a fair trial to be conducted of this aspect of the case. That, too, supported the conclusion that the proceedings should be permanently stayed. 

At [63] and [80] – [81], the Court held:  

I am satisfied that it must thus be accepted that like the tutor in Moubarak, as the result of the timing of Mr Zuliani’s death, before MXS2’s allegations were revealed, Georges River Grammar School is now left utterly in the dark about the crucial matters MXS2 alleges against it in relation to the claimed assaults. This unarguably supports the conclusion that any trial would now be manifestly unfair. 

In all the circumstances of this case I am thus also satisfied that a permanent stay of the proceedings must be granted, the necessary exceptional circumstances having been established and that being what the interests of the administration of justice require. 

Their continuation, I am satisfied, given the consequences of the passage of time and Mr Zuliani’s death for the defence of MXS2’s claims would also be entirely unfair to Georges River Grammar School, given MXS2’s long delay in making a complaint, and then only after Mr Zuliani’s death, at a time when pertinent records cannot be located and available witnesses do not remember claimed events. 

Simply put, the Court ordered a permanent stay of the plaintiff’s proceedings. The Court further ordered that the plaintiff pay the defendant’s costs.   

Of note, the Court provided at [56]: 

The claimed events occurred long ago, but not as long ago as some other claimed historical sexual abuse cases which have proceeded, after applications for permanent stay have been refused. But unlike other cases which have proceeded, in this case, like in Moubarak, because of the absence of any complaint by MXS2 before Mr Zuliani died, there has never been any opportunity for Mr Zuliani to give Georges River Grammar School any account about the matters MXS2 pursues in these proceedings. Nor do any available documents or other witnesses who worked at the school at the relevant time shed any light on these claims. 

Further updates in relation to the stay of proceedings of historical abuse cases can be found in other articles on our website written by Emily Wright and our office.  

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today. 

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