O’Callaghan v Trustees of the Marist Brothers [2023] NSWSC 432 (on Caselaw).
With thanks to Matthew Blundell for drawing attention to this decision.
The Trustees had applied for a permanent stay in respect of an abuse claim dating back some 60 years, where the alleged perpetrator (who had been named in other claims) had died in 2020 and before his death had suffered from cognitive difficulties.
Elkaim AJ stated that if a defendant wishes to benefit from the very special remedy of a permanent stay then it must have first disclosed all of its relevant knowledge, even if that knowledge was otherwise protected by privilege ([23]). The defendant’s failure to disclose all matters known to it concerning (the alleged perpetrator) was fatal to its claim for a permanent stay ([26]).
Comment was also made in relation to medical evidence and the enquiry issue in that “Dr Culver certainly provides little prospect of (the alleged perpetrator) being able to defend himself in a criminal trial, his views do not exclude the possibility of some information being obtained upon polite enquiry: ([35]).
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