by Esther Boersma, Lawyer
On 13 November 2024, the High Court of Australia handed down two long-awaited judgments in relation to permanent stays of proceedings in historical abuse cases. The High Court’s decisions in Willmot v The State of Queensland[1] (Willmot) and RC v The Salvation Army (Western Australia) Property Trust[2] (RC) mark a notable development in the ‘new world’ of historical abuse claims in a post-GLJ v The Trustees of the Roman Catholic Church for the Diocese if Lismore[3] (GLJ) landscape that will continue to have significant consequences for institutional defendants.
Following the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), certain previously available defences were removed across Australia, including amongst others, relevant statutory limitation periods generally requiring claims to be brought within three years after a person turns 18. In changing those laws however, Parliaments across Australia explicitly said that the ability for a defendant to apply for a permanent stay of proceedings, where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible, remained available.
The decision in GLJ, marked the first significant development in this area, where the High Court of Australia ultimately held that child abuse cases by their very nature, and having regard to all that was learned from the Royal Commission, meant that we are in a ‘new world’ when considering what circumstances were actually required for a child abuse trial not to be a fair one.
In Willmot, the High Court found that despite the passage of time and death of key witnesses and all but one alleged perpetrator, a fair trial was possible for three of the five pleaded allegations, and granted a partial stay of proceedings concerning those allegations. The High Court, consistent with GLJ, noted that a permanent stay is a last resort and requires an ‘exceptional’ case in which it is impossible for the irreducible minimum necessary for a fair trial to be satisfied.[4] The Court determined that the irreducible minimum must be found on the circumstances and statutory context of each case.[5] Further, the Court reinforced the finding in GLJ that the impoverishment of evidence due to the passing of time, in and of itself, does not enliven the power to stay proceedings. To be successful in this regard, the lapse of time must have had a ‘burdensome effect – in the sense of some forensic consequence – which is so serious that a fair trial is not possible’.[6] Those allegations that were permanently stayed were ones which the Court described as ones where the defendant was not able to even investigate the ‘foundational facts’.[7] The High Court did not however, specify what constitutes an exhaustive list of potentially sufficiently significant ‘foundational facts’ for the purpose of justifying a permanent stay.
In RC, the High Court applied the reasoning set out in the Willmot decision (heard immediately before RC) and found that, on the facts, the death of the alleged perpetrator and key witnesses did not deprive The Salvation Army of any evidence that would prevent them making a meaningful response to RC’s allegations; rather, it lost the possibility of a bare denial, and that the absence of documentary records did not equate to an unfair trial as the plaintiff is still able to be cross-examined on his evidence.
Courts will be less likely to allow an application for a permanent stay by institutions responding to historical child abuse claims, even where the perpetrator is deceased. The judgments in Willmot and RC reinforce the Court’s decision in GLJ confirming that there will be very limited circumstances in which a permanent stay will be granted, with each application assessed on a highly fact specific basis.
Further, the High Court highlights the importance of pleading with specificity, in relation to where a plaintiff has failed to provide sufficient particulars within a pleading, and the requirement of a defendant to demonstrate specific prejudice when seeking a permanent stay.
The bar is set high and institutional defendants seeking a permanent stay will need to more seriously consider whether they can demonstrate a ‘burdensome effect’ more than just the passing of time, death of witnesses and absence of documentary records. This may likely mean more plaintiffs in historical abuse cases will be permitted to run their cases at trial.
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[1] Willmot v The State of Queensland [2024] HCA 42.
[2] RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43.
[3] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32.
[4] Willmot v The State of Queensland [2024] HCA 42 at [26].
[5] Ibid.
[6] Ibid at [23], [48], [178].
[7] Ibid at [84]