In brief - The granting of a permanent stay of proceedings remains an exceptional remedy that will turn on the unique circumstances of a case. This article examines the circumstances that led to five recent cases in New South Wales, Victoria and Western Australia being permanently stayed.
The granting of a permanent stay of proceedings remains an exceptional remedy. The court's decision to grant one will turn on the unique facts of a case.
The death of an alleged perpetrator and the unavailability of any other witnesses are key considerations in a defendant's inability to obtain a fair trial.
Tendency evidence may not be able to overcome the prejudice a defendant faces in the absence of direct evidence of the allegations.
The onus lies squarely on the defendant and it will need to demonstrate comprehensive efforts to find evidence relating to the claim.
Defendants should be turning their minds at an early stage to the availability of witnesses and evidence, undertaking comprehensive searches and investigations, and documenting all enquiries made.
In 2016 the Limitation Act 1969 (NSW) was amended, with retrospective effect, abolishing any limitation period on a civil action for damages relating to the abuse of a child. Similar amendments were made in Victoria in 2015 and in Western Australia in 2018.
The amendments do not limit the court's inherent jurisdiction to permanently stay proceedings on the basis that the proceedings amount to an abuse of process due to the passage of time with implications for the availability of a fair trial (Moubarak by his tutor Coorey v Holt  NSWCA 102).
Permanent Stays in NSW
GLJ commenced proceedings in the Supreme Court of NSW in January 2020 claiming damages arising from an allegation that in 1968, when she was 14, she was sexually assaulted by a priest. GLJ alleged that the Diocese was negligent in breaching its duty of care owed to her and that it was vicariously liable for the actions of the priest.
The Diocese filed a notice of motion seeking a permanent stay of the proceedings which was refused in the first instance. The Diocese contended it was unable to receive a fair trial in circumstances where it had no recourse to the alleged perpetrator (who died in 1996) or other material witnesses. Critically, there were no other witnesses to the abuse with the only evidence being that of GLJ. Further, neither the Diocese (which first learned of the abuse in 2019) nor the alleged perpetrator were on notice of GLJ's allegation prior to the priest's death (and thereby had no opportunity to investigate and obtain his response).
There was evidence produced on subpoena dating from 1970 and 1971 that members of the Diocese were aware of allegations the alleged perpetrator had sexually abused children and that seven other alleged victims, all male, had come forward. Also in evidence were four unsworn statements from males who alleged they were sexually abused by the alleged perpetrator when they were children.
On appeal the court accepted that the evidence arguably demonstrated the alleged perpetrator's sexual interest in boys, however, her Honour was not persuaded that this evidence overcame the prejudice to the Diocese. Mitchelmore JA considered that the primary judge erred in his Honour's assessment of the impact of the alleged perpetrator's death on the fairness of the trial noting that there is no available contradictor and everything depends upon the acceptance of the plaintiff's account.
In re-exercising the discretion and granting a permanent stay, her Honour did not consider that the passage of time (some 54 years) was any criticism of GLJ and did not of itself warrant the grant of a permanent stay. Rather, it was the consequences of that passage of time that caused the alleged perpetrator, who was a critical witness, to have died before he or the Diocese were on notice of the allegations (including those of GLJ and the tendency witnesses). Borrowing a phrase from Bell P in Moubarak, the defendant was "utterly in the dark" on the central issue of the case.
Mr Fields commenced proceedings in July 2019 claiming damages for sexual abuse alleged to have occurred in 1966 whilst he was a student at St Joseph's School in Lismore. Two causes of action were pleaded in negligence regarding inadequate systems to address and manage a foreseeable risk of harm, and vicarious liability.
The alleged perpetrator died in 2000 and the principal from the relevant period died by 2014. The defendant first learned of the plaintiff's allegations in August 2018 and most records from the school were destroyed in a flood in Lismore in 1974.
The defendant filed a Notice of Motion in November 2020 seeking that the proceedings be permanently stayed or dismissed.
There were no witnesses to the alleged abuse and the plaintiff relied upon tendency evidence from seven former students at the school around 1965 and 1966. The defendant was therefore required to investigate eight separate claims of sexual abuse by the alleged perpetrator, none of which were said to have been witnessed at the time nor corroborated by any independent evidence.
Two complaints were received prior to the alleged perpetrator's death, however, they did not relate to abuse alleged to have taken place at the school and the allegations took place many years later. Prior to the alleged perpetrator's death there were no articulated complaints that he had sexually abused a former student at the school.
The court held that the use of tendency evidence in these circumstances magnified the prejudice to the defendant arising from the death of the alleged perpetrator with the defendant unable to investigate or challenge the primary evidence of the plaintiff and the tendency evidence relied upon.
The court outlined six features that led to the conclusion that the proceedings must be stayed:
The defendant was unable to investigate or challenge directly the plaintiff's account of the abuse with no relevant documents in existence and the only possible witness being deceased;
There were no documents available that went to the factual matters relevant to the claim (such as evidence of a school carnival and teachers in attendance);
Neither the headmaster nor any relevant staff from 1966 were alive meaning the defendant could not deal with the allegations about the role of the alleged perpetrator and the factual circumstances of the abuse;
In respect of vicarious liability, the headmaster was unavailable and there were no records to speak to the alleged perpetrator's role;
There was an absence of any relevant individuals and documents to meet the claim in negligence and it was not clear how there could be any evidence about the relevant standards at the time; and
The lapse of 55 years was considered "very lengthy" and longer than events considered in GLJ, Prince Alfred and Batistatos.
His Honour noted that the decision may come as a surprise to those in the community who wish to see justice done by the payment of damages to victims of historic sexual abuse. His Honour referred to other avenues that victims may seek redress such as the National Redress Scheme, which does not require the establishment of liability according to the principles of the common law.
Mr Smith sought leave to appeal from the summary dismissal of proceedings commenced by him in August 2021 in the Supreme Court of NSW seeking damages for sexual abuse allegedly perpetrated in 1981 when he was in year 6. The alleged perpetrator, Rev Sandars, died in 2012 and the alleged abuse was disclosed to the Headmaster of the school in 2017.
There was no suggestion that there were any direct witnesses to the abuse. Mr Smith contended sufficient evidence existed which, if accepted, would likely result in his case most likely failing, thereby arguing a fair trial was possible.
Key witnesses were deceased or unable to be located, including the headmasters who appointed Rev Sandars and who held office during the relevant period, a PE teacher who might have provided evidence of what he saw at a swimming pool, Mr Smith's year 6 teacher and secretaries of Rev Sandars from 1981. There was an absence of documents or contemporaneous materials dealing with the allegations, though there were witnesses who gave evidence to the effect that they never suspected Rev Sandars of any sexual misconduct with students. The school relied on extensive efforts undertaken to find testimonial and documentary evidence relating to the claim.
The court noted the measure of public importance attaching to cases such as these in light of the seriousness of the allegations. It also considered the 2019 case of Anderson involving the same school but a different alleged perpetrator, in which the court granted a permanent stay turning on the unavailability of Rev Sandars who was in that case a key witness as to whether the sexual offending took place. The court also considered GLJ and ultimately refused leave to appeal, upholding the primary judge's decision to permanently stay the case.
Permanent Stays in Victoria and Western Australia
In GMB v UnitingCare West  WASCA 92, the Supreme Court of Western Australia upheld a permanent stay relating to alleged physical and sexual abuse taking place at a residential care facility in the late 1950s. Although complaints of abuse (by other complainants) had been raised against the alleged perpetrator during her lifetime, the Court held that it was not obvious that the defendant should have undertaken extensive investigations into all former residents to uncover potential victims of sexual abuse. In this case the plaintiff was born in 1953 and first disclosed the abuse in a statement to the Royal Commission in 2017, five years after the alleged perpetrator died.
In Phillips v Stanzer  VSC 355, the Victorian Supreme Court granted a permanent stay in respect of allegations of sexual abuse brought by two sisters against their deceased uncle's estate. In the two years prior to the uncle's death, police had commenced an investigation into the alleged abuse and were on the cusp of bringing formal charges. Although the sisters had a strong case against their uncle, the Court held that this was not determinative as to whether the case would be manifestly unfair.
Notably, 12 months prior to the uncle's death, police had recorded a phone call between him and the sisters, in which the allegations were put to him. However, given the uncle's ill health and declining mental state at the time of the phone call, the Court held that his response to the allegations was to be approached with caution.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.