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Judge finds Australian Catholic order should not benefit from its ‘own inaction’ in not speaking to known abuser before he died
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@knauscFri 5 May 2023 12.56 AEST
A Catholic order has lost its latest attempt to use the death of a known paedophile clergy member to shield itself from allegations of child sexual abuse after a judge found that allowing such a course would “bring the administration of justice into disrepute”.
In recent months, the Guardian has revealed how the Catholic church, in particular its Marist Brothers and Christian Brothers orders, is increasingly using the deaths of clergy members to argue for permanent stays of cases brought by abuse survivors in the civil courts.
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The church, which for decades covered up sexual abuse and thwarted justice for victims and survivors, has been emboldened by a win in New South Wales’s highest court last year, which found a perpetrator’s death made a fair trial impossible.
In a more recent case, the Marist Brothers argued that the death of notorious paedophile Brother Francis “Romuald” Cable rendered it unable to fairly defend itself from a civil claim by a survivor known by the pseudonym of Mark Peters, because it can no longer call Cable as a witness.
The Marist Brothers made that argument despite the fact that Cable was alive for 22 months after Peters first notified it of his claim. After learning of Peters’s claim in October 2020, it did nothing to seek a response from Cable before he died in September 2022. Cable was 88 years old and behind bars when the Marist Brothers learned of the impending case.
On Friday, the NSW supreme court rejected the church’s attempts to use Cable’s death to justify a permanent stay.
“The defendant should not, in my view, have the benefit of its own inaction,” justice Nicholas Chen found.
“The defendant’s alleged inability to meaningfully deal with the claim is, I find, a product of its own unreasonable failure to attempt to make contact with Cable, and to take steps to secure his evidence.
“In my view, to accept otherwise would, adopting what was said by [former chief justice Thomas Bathurst], ‘itself bring the administration of justice into disrepute’.”
Court documents allege the Marist Brothers have known of abuse complaints against Cable since 1967, but concealed his crimes from police and other authorities for decades and instead shuffled him between its schools, where he continued to abuse children.
The Marist Brothers argued to the court that it didn’t seek a response from Cable to Peters’s allegations while he was alive because he had earlier rebuffed them in 2015 and said he did not want to have any more contact with the order’s leadership team.
But the court rejected that submission for five separate reasons. It found that 2015 was a particularly sensitive time for Cable, given he had just been convicted for child abuse and was awaiting sentence, meaning he may have been more likely to want to talk five years later, if the Marist Brothers had attempted to contact him again.
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The court also found that Cable may have been willing to talk to a lawyer or investigator, rather than a member of Marist’s leadership team.
Cable had also subsequently pleaded guilty to a raft of other child abuse charges in the period after the Marist Brothers approached him in 2015. He knew he would likely be in jail until he died, the court found. That “suggests that Cable, if contacted, may well have agreed to discuss what happened to the plaintiff”.
“At an absolute minimum, I consider that the defendant should have attempted – on an ongoing basis – contact with Cable following the letter notifying the defendant of the plaintiff’s intent to commence proceedings in 2020, and those steps should have been intensified once proceedings had been commenced,” Chen ruled.
“As it happens, nothing was done by the defendant to ascertain whether Cable would speak to them, their lawyers or investigators about the plaintiff’s claim.
“I do not accept that the defendant can simply stand back and do nothing, which is what has occurred here.”
It is unclear whether the Marist Brothers will attempt to appeal the ruling. But the win allows Peters to proceed with his case and either agree to a settlement or take it to trial.