Diocese of Grafton, convicted former Lismore priest win permanent stay application

Grafton Diocese wins halt on alleged abuse civil case after arguing the Lismore priest was mentally unfit.

A man who tried to seek compensation from the Diocese of Grafton over alleged sexual abuse at the hands of a Lismore priest has lost his bid.

The man, who cannot be named, brought the claim against the church in the NSW Supreme Court, seeking damages for alleged historic sexual abuse in the 1970s by Anglican priest Allan Kitchingman.

His statement of claim alleged he was sexually abused when he was billeted to Mr Kitchingman’s Byron Bay home as a resident at the North Coast Children’s Home in Lismore.

The man further alleged the Corporate Trustees of the Diocese of Grafton failed in their “direct duty of care” and responsibility to manage, control and supervised ordained priests within the diocese.

The Diocese’s Trustees did not admit the allegations of the negligence or abuse, maintaining it “does not know and cannot admit any of the details of the sexual abuse”.

The Diocese Trustees then filed a cross-claim against Mr Kitchingman seeking indemnity in October 2020.

But Justice Peter Garling ruled on September 2 the claim and cross-claim be permanently halted.

The decision was made after a notice of motion was filed by Mr Kitchingman’s solicitors in March last year applying for a permanent stay on the basis of Mr Kitchingman’s “moderately severe” Alzheimer’s disease.

The Diocese’s Trustees then filed a motion in April seeking the plaintiff’s statement of claim be permanently stayed.

Mr Kitchingman had been previously facing an unrelated charge of buggery, alleged to have occurred in the 1970s in Lennox Head.

However, prior to a Lismore District Court trial taking place, Mr Kitchingman was found unfit for trial.

The former priest had already been sentenced to an 18-month term of imprisonment in 2002 after pleading guilty to five counts of indecent assault of another resident of the home which occurred in the 1970s.

Additionally, Mr Kitchingman had also been convicted in 1968 for another unrelated offence of indecent assault on a 16-year-old boy, which saw him placed on a good behaviour bond for two years.

Documents before the civil case included historical letters from the Bishop of Newcastle to the Bishop of Grafton which acknowledged this charge.

“If I was in your position I’d take him like a shot – but he ought to leave the Diocese after his trial,” the Bishop of Newcastle wrote.

Justice Garling ruled significant affidavit evidence proved Mr Kitchingman’s cognitive disorder.

“All of this evidence satisfies me that Mr Kitchingman has no capacity to respond to the cross-claim brought against him,” he said.

He noted Mr Kitchingman’s submissions that the plaintiff did not tell anyone about the sexual abuse until 2018 and evidence would largely be based on both his and Mr Kitchingman’s memory - the latter of whom had “no capacity to respond in any way at all”.

 Furthermore, he noted this left the diocese at a “most disadvantageous position” for a fair trial.

“The only two eye witnesses to the assault were the plaintiff and Mr Kitchingman,” he said.

“The trustees do not have available to them any documents about the alleged sexual assault other than those produced in the course of these proceedings.

“There is nothing in their records which touches upon the occurrence of the sexual assault, and only the barest detail about the fact that the plaintiff was billeted to the home of Mr and Mrs Kitchingman during a holiday period.”

The letter produced warning the Bishop of Grafton was also seen as being a number of years before the case’s alleged assault.

“There was no suggestion that there had been any breach by Mr Kitchingman of that good behaviour bond,” Justice Garling noted.

Given that, he granted the application for both claim and cross-claim be permanently stayed.

He also ordered the plaintiff pay the Diocese’s Trustees costs for the Notice of Motion filed, and the costs they were ordered to pay Mr Kitchingman on his Motion.