The Guardian [London, England]
March 10, 2023
By Christopher Knaus
Marist Brothers approach in seeking to halt a survivor’s case over a clergy member’s death would be ‘absolutely perverse’, court hears
A Catholic order allegedly sat on its hands for almost two years waiting for a notorious paedophile clergy member to die and is now using his death to claim it could no longer receive a fair trial against one of his victims, an approach described in court as “absolutely perverse”.
The Marist Brothers order is currently seeking to permanently halt a survivor’s case alleging abuse by the late Brother Francis “Romuald” Cable, arguing his death renders it unable to fairly defend itself because it can no longer call him as a witness.
Court documents allege Marist has known of abuse complaints against Cable, one of New South Wales’ worst Catholic school offenders, 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 concealment helped delay justice for Cable’s victims until he was sentenced to imprisonment in 2015 for crimes against 19 boys and again in 2019 for the abuse of another five boys.
In 2020, a survivor known by the pseudonym of Mark Peters notified Marist he would be filing a civil claim against the church for failing to stop his abuse at the hands of Cable in 1969 and 1970, despite knowing of other complaints against him as early as 1967.
Cable died behind bars 22 months after Peters notified Marist of his intention to sue.
In the almost two-year window between Peters’ claim and Cable’s death, Marist did nothing to try to seek a response from Cable to the allegations, the NSW supreme court heard on Friday.
Despite that lack of action, Marist is now arguing to the court that it can no longer receive a fair trial due to Cable’s death, which leaves it unable to subpoena him as a witness.
It wants the NSW supreme court to permanently stay Peters’ case, meaning it would be prevented from going to trial. Marist has argued that it made reasonable attempts to try to speak with Cable because, in 2015, it tried to speak with him, but his lawyers told them their client had nothing to say.
It made no further attempt to call or write to him, including after it became aware of Peters’ claim in 2020.
Peters’ barrister, Shaun McCarthy, told the NSW supreme court on Friday that it cannot possibly deem Marist’s inaction for 22 months, when it did “literally nothing”, as a “reasonable” attempt at making inquiries about the allegations with Cable.
“We would say that would be an absolute perverse outcome for a court to find that, for a defendant to sit on its hands and count down the clock until an elderly man dies, is reasonable in the context of these types of cases,” he said.
Nicholas Polin SC, representing Marist, said Cable was a fundamental witness to the alleged abuse.
His death left Marist unable to properly challenge the plaintiff’s evidence at trial, Polin said. The prejudice Marist suffered by Cable’s death, he said, was reinforced by what he described as “considerable doubts” about parts of Peters’ allegations.
“The primary problem is the running of the case … is the case going to be effectively a sham because you can’t call the person on the other side of the assault,” he said.
“The fact is that if you don’t have Cable there, the plaintiff’s version as to what actually happened on the day or days goes in unchallenged. There are things you can do around the edges … but all they do is chip around at the edges in a case which effectively involves two people.”
He said it was reasonable for Marist not to have approached Cable again after the former brother, through his lawyers, told the order that he wanted nothing more to do with them in 2015.
Justice Nicholas Chen has reserved his decision on Marist’s stay application.
It is not the first time that the church has sought to use the deaths of paedophile clergy to halt civil claims lodged by their victims.
The Guardian has previously revealed that a similar strategy has been adopted more broadly across Catholic dioceses and entities since a landmark ruling in the NSW court of appeal last year, which found the Lismore diocese could not have a fair trial due to the death of a priest, Father Clarence Anderson, who is accused of abusing a 14-year-old girl known only as GLJ.
That finding was made despite clear evidence that high-ranking church officials knew the priest was abusing boys at least four years before GLJ’s alleged assault, but did not remove him from the clergy, instead shuffling him through parishes where he continued to abuse children.
The GLJ case is being appealed to the high court by her lawyers, Ken Cush and Associates.
But it is already being used as the basis to launch stay applications in similar cases, or threaten to launch stay applications during settlement negotiations. Law firms dealing with abuse claims say their clients are being low-balled in settlement negotiations under the threat of a permanent stay.
The reliance on the deaths of paedophile clergy to stymie abuse claims is at odds, lawyers say, with the intents of parliaments across the country, which removed time limits on historical abuse claims in recognition of the barriers facing survivors.
The child abuse royal commission found the delay in coming forward was, on average, more than 22 years. That makes it common for perpetrators to have died by the time survivors file civil action.
In Australia, children, young adults, parents and teachers can contact the Kids Helpline on 1800 55 1800, or Bravehearts on 1800 272 831, and adult survivors can contact Blue Knot Foundation on 1300 657 380. In the UK, the NSPCC offers support to children on 0800 1111, and adults concerned about a child on 0808 800 5000. The National Association for People Abused in Childhood (Napac) offers support for adult survivors on 0808 801 0331. In the US, call or text the Childhelp abuse hotline on 800-422-4453. Other sources of help can be found at Child Helplines International