Case Note: Willmot v The State of Queensland [2024] HCA 42

By Luke Geary, Partner, Erin Hill, Lawyer, and Lachlan Deer, Law Graduate.

A full copy of the case can be accessed here.

Jurisdiction	High Court of Australia
Coram	Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Date of Hearing	7 May 2024
Date of judgment	13 November 2024
Plaintiff	Joan Edith Willmot
Defendant	The State of Queensland

Background

Ms Willmot was a child in the care of the State of Queensland between 1957 and 1967. She filed a claim against the State seeking damages for negligence following psychiatric injury caused by alleged sexual and physical abuse that occurred during her placement in foster care, at Cherbourg Girls’ Dormitory and upon visits to her grandmother. The State applied for a permanent stay, arguing that the passage of time, death of key witnesses, and unavailability of contemporaneous documentary evidence made a fair trial impossible. The primary judge granted the permanent stay, which was upheld by the Queensland Court of Appeal.

Further details of the factual background, evidence adduced by the parties and the reasoning can be found in the judgments of the Supreme Court of Queensland and the Queensland Court of Appeal.

The decision of the High Court of Australia

The High Court disagreed with the judgments of the lower courts that the proceedings should be permanently stayed in their entirety.

The majority of the High Court reinforced the finding in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore^[1] by stating consistently that the enactment of s.11A of the Limitation of Actions Act 1974 (Qld)^[2] resulted in a fundamental change to the legal context for a stay application in historical child abuse claims, and relevantly that:

1. a reality of the enactment of s.11A is that ‘impoverishment of evidence is now to be encountered and expected” in such cases and “the courts will need to deal with that impoverishment”;^[3] and
2. in order to be successful in an application for a permanent stay due to the impoverishment of evidence, the State would need to prove that the lapse of time has had a “burdensome effect – in the sense of some forensic consequence – which is so serious that a fair trial is not possible”.^[4]

The High Court considered each allegation of abuse separately and the majority determined the following:

1. The pleaded allegations of sexual abuse by Ms Willmott’s foster carer, Mr Demlin, should not be permanently stayed because:^[5]
   1. the allegations of Ms Willmot and the corroborating tendency evidence in the affidavit of RS (who was also an alleged victim of the foster carers) did not make a trial unfair because each of their allegations were “not vague or uncertain” and they could each be cross-examined at trial. It would then turn to the trial judge to determine whether the allegations were established on the balance of probabilities;^[6]
   2. even if Mr Demlin and / or his wife were still alive, “it is unlikely that the State was deprived of much more than a bare denial by Mr Demlin upon confronting him with the allegations”;^[7]  and
   3. “it is unlikely that contemporaneous documents ever existed which directly bear upon the likelihood of the abuse” and in the absence of the State identifying that documents once existed but had been lost due to the effluxion of time, the burdensome effect of the passage of time is limited.^[8]
2. The pleaded allegations of physical abuse by the Demlins should be permanently stayed because the allegations were “so vague that they are incapable of meaningful response, defence or contradiction”.^[9]
3. The pleaded allegations of physical abuse during Ms Willmot’s residence at the Girls’ Dormitory should not be permanently stayed because the evidence adduced by Ms Willmot in the form of affidavits, as well as contemporaneous documents, spoke to the alleged perpetrator’s conduct with children and, therefore, allowed the State to understand the alleged perpetrator’s practice of corporal punishment and make an informed response to the allegations.^[10]
4. The pleaded allegations of sexual abuse by NW during a visit to Ms Willmot’s grandmother should not be permanently stayed because the perpetrator remained alive and contactable for two years following Ms Willmot initiating proceedings. This allowed the State to provide a meaningful response to the allegations, which was reinforced by Ms Willmot’s solicitors actually contacting NW to confirm his identity and capacity to provide evidence the day before the hearing before the primary judge.^[11]
5. The pleaded allegations of sexual abuse by ‘Uncle Pickering’ during a separate visit to Willmot’s grandmother should be permanently stayed because the State was unable to investigate the foundational facts of the allegations as the allegations were too vague, leaving the State limited in its investigations to the cross-examination of Ms Willmot.^[12]

Case Note:  RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43

By Luke Geary, Partner and Carlie Alcock, Senior Associate.

A full copy of the case can be accessed here.

Jurisdiction	High Court of Australia
Coram	Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Date of Hearing	7 & 8 May 2024
Date of judgment	13 November 2024
Plaintiff	RC
Defendant	The Salvation Army (Western Australia) Property Trust

Background

RC brought a claim in the District Court of Western Australia against The Salvation Army (Western Australia) Property Trust (The Salvation Army) alleging that between 1959 and 1960, while he was a child resident at the Nedlands Boys’ Home (owned and operated by The Salvation Army), he suffered sexual abuse at the hands of Lt Swift, an Officer at the Home. RC claimed that The Salvation Army breached common law and statutory duties and was vicariously liable for the abuse by Lt Swift.^[1]

The Salvation Army sought an order to permanently stay the proceedings on the basis that, having exhausted reasonable inquiries more than 60 years after the relevant events were said to have occurred, it could not meaningfully defend RC’s claim. The primary judge granted the permanent stay and the decision was subsequently upheld on appeal.

Further details of the factual background, evidence adduced by the parties and the reasoning can be found in the judgments of the District Court of Western Australia and the Supreme Court of Western Australia Court of Appeal.

The decision of the High Court of Australia

An application by RC for special leave to appeal to the High Court was heard immediately after the appeal in Willmot v Queensland (Willmot). In applying the principles discussed in Willmot, the High Court determined that the Court of Appeal erred in finding that there could be no fair trial of the proceedings and held that the permanent stay should be refused.

In reaching its decision, the High Court considered each of the bases on which The Salvation Army submitted that there could not be a fair trial of the proceedings, namely:

1. the death of Lt Swift meant that The Salvation Army could not put the allegations to him for a response, nor call him as a witness at trial;
2. the death of Major Watson in 1968 similarly deprived The Salvation Army of the ability to make enquiries with him as to the alleged report of abuse made by RC;
3. there was an absence of other officers and staff who were stationed at the Home at the relevant time, who were still alive and/or available to provide information; and
4. there was an absence of contemporaneous records or other relevant documentary evidence to enable The Salvation Army to investigate the allegations.^[2]

In considering each of the above, the majority determined that:

1. with regard to the death of Lt Swift, The Salvation Army had been unable to demonstrate that it had lost any more than ‘the possibility of a bare denial by Lt Swift’.^[3] This was particularly the case where evidence of The Salvation Army during the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) (submitted in the proceedings) suggested that “officers almost always den[ied] any allegations of abuse“^[4];
2. similarly, in relation to the death of Major Watson, the Court found that, at most, The Salvation Army was deprived of the possibility that Major Watson may have denied a report was ever made by RC and that the alternative, an admission that a report was made, would only benefit RC. Likewise, the existence of any documentary evidence of such a report would also likely only assist RC^[5];
3. as to the unavailability of Officers previously stationed at the home during the relevant time, the majority noted that two Officers were available with whom enquiries were made and, further, that Lt Swift’s wife had been available at the time that earlier complaints relating to Lt Swift had been received by The Salvation Army but had not been contacted^[6]; and
4. finally, with respect to the absence of documentary records, the majority held that ‘The Salvation Army was not in the dark about the precise nature of RC’s allegations’, and that RC could be cross-examined on his evidence, including as to any discrepancies between the alleged abuse as pleaded, his affidavit and his earlier redress application.^[7] Additionally, it was open to The Salvation Army to cross-examine the further ten potential witnesses identified by RC who had previously made claims of abuse concerning Lt Swift.

In this regard, the Court held that ‘[a] trial of the allegations is not unfair merely because a pathway to a successful challenge to [a plaintiff’s] evidence has not been revealed’.^[8]

Importantly, the majority made specific reference to submissions provided by The Salvation Army to the Royal Commission (and submitted as evidence during the proceedings) and noted that ‘[t]he report and statement given to the Royal Commission show that the Salvation Army considered it right to make a formal submission saying that there was no safe system of supervision and investigation at the homes operated by it, including at the Home’^[9] and that ‘any contemporaneous complaint of sexual abuse would likely not have been recorded or investigated because of systemic and cultural failings within the Salvation Army’.^[10]

Moreover, that evidence ‘reinforce[d] that the Salvation Army ha[d] been aware of allegations against Lt Swift for years, if not decades; ha[d] been able to draw conclusions about what the Salvation Army did and did not do during the relevant period; and ha[d] acknowledged that, during that same period, Lt Swift did assault boys’.^[11] The question of whether the submissions made to the Royal Commission or the evidence of prior claims naming Swift would be admissible at a trial of RC’s claims was said to be irrelevant.^[12]

Finally, as to RC’s claim of vicarious liability, the Court found that The Salvation Army had sufficient information available to it to have been able to ‘advance a positive pleading that Lt Swift was not an employee, but rather was an ordained minister’.^[13]

The High Court therefore held that The Salvation Army had ‘not discharged its heavy onus to obtain a stay because it has not identified that the trial of the joined issues would be unfair’.^[14]

Key takeaways from both cases

Courts will be less likely to allow an application for a permanent stay by institutions responding to claims relating to historical child abuse, even where the perpetrator is deceased. It is clear from the judgments in Willmot and RC^[15] that there will be very limited circumstances where a permanent stay will be allowed.

Further, the importance of pleading with specificity is reinforced by the High Court in that where a plaintiff has failed to provide sufficient particulars within a pleading, and an institution cannot therefore make any meaningful investigations nor defend the plaintiff’s claim, a permanent stay may result.  This may include where the particulars do not enable an institution to identify an alleged perpetrator.

—

[1] A summary of the facts and background of the case before the District Court can be found in our case note published 16 December 2021, located here.

[2] RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43 at [25].

[3] Ibid at [27].

[4] Ibid. Steward and Gleeson JJ both disagreed with the view that The Salvation Army had lost no more than the possibility of a bare denial by Lt Swift, noting that this was ‘pure speculation’ (see Steward J at [82]) and ‘it was not reasonable to assume that Lt Swift would have been unable to contradict or cast doubt on some aspects of the particulars given by RC of the alleged sexual abuse’ (see Gleeson J at [94]).

[5] Ibid at [28]-[29]. Gleeson J disagreed that the only evidence lost as a result of Major Watson’s death was his response as to whether the alleged report by RC was made (see Gleeson J at [95]-[96]).

[6] Ibid at [29]-[30]. Gleeson J disagreed that The Salvation Army was required to explain why it did not contact Lt Swift’s wife before her death, prior to becoming aware of RC’s allegations in 2014 and while all of the prior claims naming Lt Swift were statute barred (see Gleeson J at [98]).

[7] Ibid at [31].

[8] Ibid at [35].

[9] Ibid at [37].

[10] Ibid at [38].

[11] Ibid at [23]. Such acknowledgment was said to be by way of prior claims of alleged abuse by Lt Swift having been received and settled by The Salvation Army, and apologies being issued to those claimants.

[12] Ibid at [23].

[13] Ibid at [39].

[14] Ibid at [40].

[15] [2024] HCA 43.

[1] [2023] HCA 32.

[2] With similar provisions in s.6A Limitation Act 1969 (NSW), s.27P Limitation of Actions Act 1958 (Vic), s.5A Limitation Act 1981 (NT), s.3A Limitations of Actions Act 1936 (SA); s.6A Limitations Act 2005 (WA), s.5B Limitations Act 1974 (Tas), s21C Limitation Act 1985 (ACT).

[3] Willmot v The State of Queensland [2024] HCA 42 at [22]; Gleeson J separately noted that although impoverishment of evidence may be expected in such claims, it may nevertheless mean a fair trial is not possible and any impoverishment of evidence and resulting unfairness should be weighed against the public interest, at [157] – [163].

[4] Ibid at [23], [48], [178].

[5] Steward J dissented and considered the allegations of sexual abuse by Mr Demlin should be stayed, at [142] – [152].

[6] Ibid at [55] – [59], [115], [118], [181] – [183], [199].

[7] Ibid at [60], [117], [198].

[8] Ibid at [60], [116], [198].

[9] Ibid at [61], [121], .

[10] Ibid at [62] – [74], [126] – [129], [153], [200] – [203].

[11] Ibid at [75] – [81], [131] – [132], [154], [195].

[12] Ibid at [82] – [85], [134] – [135], [154], [194].