Marist Brothers Deny a Duty of Care to Their Victims

Broken Rites
May 30, 2014

http://brokenrites.org.au/drupal/node/102

Catholic religious Brothers, who have been operating schools in Australia for more than a century, now deny that they owe a duty of care to protect pupils from sexually-abusive Brothers, according to church lawyers. The lawyers told a Canberra civil court on 4 June 2008 that (unlike lay teachers who are employed on salaries) the Brothers are not, technically, "employees". Therefore, this would be the Brothers' defence if their sexual-abuse victims take civil action through the courts to obtain damages.

Catholic religious Brothers in Australia include the Christian Brothers (who arrived from Ireland in 1868), the Marist Brothers (arrived 1872), the De La Salle Brothers (arrived 1906), the Patrician Brothers (arrived 1883) and the St John of Good Brothers (arrived 1947).

The Canberra civil proceedings, in the Supreme Court of the Australian Capital Territory, involved the Marist Brothers. Three former students from Canberra's Marist College claimed substantial compensation from the Marist Brothers organisation because Brother John William Chute (alias "Brother Kostka") was openly molesting students in the 1980s and '90s. In criminal proceedings earlier in 2008, 76-year-old Kostka Chute had pleaded guilty to molesting six teenage boys between 1985 and 1989, during his 18-year stint at Marist College. All of the offences occurred on school premises, and in some cases involved daily abuse over several months. In the criminal proceedings, Kostka pleaded guilty to molesting two of the civil plaintiffs, but the third civil plaintiff did not seek criminal prosecution. In the criminal proceedings, Kostka's lawyer indicated that Kostka became co-opted into to a culture of sexual abuse while he was training in his teens (in the care of the Marist Brothers) to become a Brother.

The compensation claim

The civil proceedings were instigated by a legal firm, Porters Lawyers, of Canberra, who alleged that the criminal proceedings covered only a fraction of Kostka's victims. Although only three civil claims had been lodged by the end of May 2008, Porters Lawyers partner Jason Parkinson foreshadowed that dozens more civil claims would be lodged against in the future against the Marist Brothers (relating to Kostka and possibly also relating to other Brothers who taught at Marist College) and also against another Canberra Catholic school, Daramalan College (in relation to a lay teacher there, Paul John Lyons).

The plaintiffs need to prove that the school knew, or ought to have known, that Brother Kostka was abusing students. According to the students' lawyers, Marist College knew it was ''harbouring a viper'' in paedophile Brother Kostka Chute but failed to protect students from him.

To support the case, the statements of claim lodged with the court contained allegations relating to other alleged victims who were not yet the subjects of civil proceedings. The allegations aim to establish a pattern of inaction by the school and the Marist Brothers, in which they ignored complaints against Kostka over several years.

One allegation is that in about 1979 the mother of a child at Marist College complained to the headmaster that Kostka was showing pornography to students in class, taking children into his office and having them sit on his lap, and masturbating under his cassock in class.

The mother asked that Kostka be removed from the school, but was allegedly told by the headmaster at the time that ''he was aware of Brother Kostka's behaviour as [she] described'' and he had informed the regional head of the Marist Brothers in Sydney.

Counter-claim by the Marists

Lawyers acting for the Marist Brothers applied to the court in May 2008 to strike out the three civil lawsuits on the grounds the suits were ''embarrassing, vexatious and oppressive''. The Marist Brothers argued that Kostka was not an ''agent'' of the Marist Brothers, as he was not technically employed. Rather, because there was no contract of employment, a Marist Brother did not owe a duty of care to his victims.

Marist Brothers' lawyers claimed that allegations which include no names or specific dates cannot be relied on because they do no not adequately articulate the alleged facts. The Marists were entitled to be told the names of the staff who were aware of the alleged abuse, the Marists' application said.

"If one is going to allege that someone was a criminal conspirator ... then there must be the plainest and most complete disclosure of the facts said to support the case," the application said.

The victims' reply

Counsel for the three victims, Tony Bartley, SC, defended the inclusion of the other allegations, arguing they were necessary to establish that some teachers and headmasters were aware of a ''culture of sexual abuse'' at the school, and that the abuse of the three victims between 1985 and 1990 could have been prevented.

In relation to the alleged victim who was not the subject of criminal charges, Mr Bartley said, "The plaintiff's allegations as to why the defendant should have acted to protect [him] depend on assertions of knowledge of the particular conduct of Brother Kostka.

"So, by 1990 when the plaintiff was molested by Brother Kostka, the school knew or ought to have known that they were harbouring in their breast a viper."

The case continues

The Marists' application failed. Justice Richard Refshauge announced in court on 4 June 2008 that he would not strike out the lawsuits but instead ordered the victims' lawyers to re-structure the documents. It was agreed that Mr Bartley would provide the Marists' counsel with amended statements of claim from the alleged victims.