A lawyer acting for the Marist Brothers visited serial paedophile Kostka Chute in jail in a bid to prevent him from making disclosures that would endanger the order's insurance cover, it was alleged at the sex abuse royal commission.
Peter O'Brien, who is representing victim and whistleblower Damian De Marco, put it to the former head of the order, Brother Alexis Turton, on Thursday that significant steps had been taken to ensure Catholic Church Insurance (CCI) would not withdraw its cover of crimes committed by Chute.
The Marist Brothers, through its insurers, has paid out $6.84 million to 38 of Chute's victims.
Brother Alexis had been the order's professional standards officer at the time of Chute's Canberra trial and the class action that followed.
He was copied in on an email from Marist Brothers lawyer Howard Harrison to Marist Provincial Brother Jeffrey Crowe on May 1, 2009.
Mr Harrison said in the email he had just returned to Sydney from Canberra where he visited Chute in jail.
''I think we will have some problems with indemnity [insurance] in due course,'' he wrote, noting that Chute had been ''regrettably upfront'' about his discussions with past leaders of the order over his sex abuse. These included Brother Charles Weldon.
''CCI will probably argue that Provincial response was inadequate – should have followed up, taken him out of school which is what Alexis did,'' he said.
The Canberra hearing of the Royal Commission into Institutional Responses to Child Sexual Abuse was adjourned on Thursday to Sydney on June 30.
It has heard that Brother Alexis, the provincial in 1993, did not remove Chute from teaching until December that year, when the family of a victim called in the ACT youth advocate Brian McLeod.
Mr Harrison told his clients that they had no choice but to make Chute available to CCI.
''Trouble is fundamentally he has high honesty and integrity levels and all of my 'suggestions' about not dumping on others excessively go out the window pretty quickly once there is a conversation under way,'' he said. ''We would need to keep him well away from the legal arena upon release.''
Mr O'Brien put it to Brother Alexis that if CCI was able to establish the Marist Brothers had known Chute posed a serious risk to students, the company would not be liable for damages claims arising from his actions. Lawyers had said as much in a letter to the order written about 2008 or 2009.
''Clearly, there would appear to be some potential for criticism in respect of an alleged approach to school authorities in 1986 involving a young man [Damian De Marco] with an issue in relation to Brother Kostka.''
That was the year Mr De Marco, a year 12 student, went to the headmaster, Brother Terence Heinrich, to say Chute assaulted him while he was in year 7 in 1981.
No meaningful action was taken and Mr De Marco raised the issue again with Brother Alexis in 1993.
''As you know, CCI are currently providing indemnity in relation to the ACT claims,'' the Marist Brothers were told. ''This may change if they see that there was some prior knowledge of problems with Brother Kostka which was not handled properly by the leadership team.''
Mr O'Brien said Brother Alexis had deliberately minimised the gravity of the assault on Mr De Marco when interviewed by Ian Whitehead, of Arrow Insurance Adjusting, during the class action.
''His [De Marco's] allegations were hugging,'' Brother Alexis told Mr Whitehead.
Mr De Marco told Brother Terence and Brother Alexis that Chute ''tried to force his hand down my pants and grope my genitals''.
Mr O'Brien put it to Brother Alexis that protecting the Marist Brothers and the church was more important to him than helping victims.
Brother Alexis denied this, saying: ''That’s not correct.''