Are Permanent Stays Here to Stay?

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Authored by Mills Oakley NFPs, Human Rights & Social Impact Team

On 7 and 8 May 2024, the High Court of Australia presided over two cases, both concerning applications appealing decisions to permanently stay proceedings.

In Willmot v The State of Queensland (Willmot), proceedings were commenced against the defendant for damages for personal injury resulting from child sexual and physical abuse alleged to have been perpetrated against Ms Willmot 53 – 63 years ago. The State claimed it could not receive a fair trial due to the passage of time since the events were said to have occurred.

In RC v The Salvation Army (Western Australia) Property Trust  (RC), the defendant sought an order permanently staying proceedings on the basis that, having exhausted reasonable inquiries more than 60 years after the relevant events were said to have occurred, the defendant could not meaningfully investigate and defend the claim. A case note containing the factual background in RC can be found here.

In each case, the relevant primary Judge and State Court of Appeal granted a permanent stay.

Submissions on appeal to the High Court

Willmot

Senior Counsel for Ms Willmot, in written and oral submissions, focused on:

  • the introduction of a ‘new normative context’ for determining permanent stays in historical child abuse cases emerging from the High Court’s decision on 1 November 2023 in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32  (GLJ) (see [47]). Specifically, that the effect of any delay on the trial process must be evaluated within the new context in which Parliament has chosen to abolish limitation periods for child sexual abuse. Willmot endorsed a suggestion that this new context permits a ‘greater tolerance’ for the impoverishment or loss of evidence such that the effects of the passing of time, like fading memories, do not necessarily lead to an unfair trial requiring a permanent stay;
  • there was sufficient evidence before the Court about the circumstances giving rise to the claim including the existence of an eyewitness testimony to some of the alleged assaults, the tendency and documentary evidence supporting the allegations against one particular offender and the fact that another witness, while elderly, is still alive; and
  • common law techniques and mechanisms were available to assist the Judge at trial in weighing evidence, despite gaps in the evidence.

The State of Queensland, in its written and oral submissions, focused on:

  • the proposition that GLJ does not redefine what constitutes a fair or unfair trial and emphasised that merely suggesting a trial ‘might’ be fair falls short;
  • expert psychiatric evidence which stated it was ‘difficult to disentangle the effects of the individual abuse instances’ as well as causation in relation to the index events and from other adverse life events of Ms Willmot;
  • the failure by Ms Willmot to adequately explain which common law techniques and mechanisms are available to the Judge at trial in the circumstances of the case; and
  • a trial would unavoidably be unfair, with no available remedy through judicial processes or discretion. The State submitted the points of fundamental unfairness included:
    • the absence of witnesses;
    • the loss of opportunity to attain evidence;
    • the inability to investigate the claim;
    • an inability to identify one particular offender; and
    • the available living witness’s testimony was not presented to the primary Judge and his memory is insufficient for a meaningful inquiry, considering the events to which he may be able to give evidence occurred 55 years ago.

Noteworthy comments from the Justices in oral argument

Justice Steward emphasised that s11A(5) of the Limitation of Actions Act 1974 (QLD) was included to ensure a court’s power to permanently stay proceedings, despite the abolishment of the limitation period, remains.

Regarding the disentangling of tortious abuse and non-tortious life events, Justice Gordon pointed out that while the State claims it cannot disentangle them, it does  know the facts of the case.

Beech-Jones J observed that the State’s submission is that the passage of time is so large that other things in the appellant’s life have impacted causation. His Honour, noted that is the case in many common law claims and that trial judges do the best they can in the circumstances, and that of itself does not normally make a trial unfair.

RC

Senior Counsel for the appellant, submitted that the respondent had not adduced evidence of anything more than the ‘inevitable impoverishment of the evidence which the passing of time occasions’ and it had failed to accurately articulate specific grounds that would warrant a trial unfair.

The appellant submitted the West Australian Court of Appeal erred in finding it was open to the primary Judge to grant a permanent stay on the cumulative effect of various matters, including:

  • the alleged offender died before the respondent was first notified of the allegations;
  • the death of other witnesses;
  • the respondent was denied the opportunity to make meaningful inquiries into what evidence the witnesses might have provided; and
  • the respondent was unable to investigate whether there previously existed relevant documentary records.

The appellant submitted these were examples of the ‘inevitable impoverishment of the evidence which the passing of time occasions’ and that the abolition of the limitation period anticipated such inevitable impoverishment of the evidence, and thus those things did not amount to grounds for a permanent stay.

Senior Counsel for the respondent, The Salvation Army (represented by Mills Oakley), proposed the concept of the ‘true test’ for considering whether a stay of proceedings should be granted. The first part of the true test being that where any prospective trial will be necessarily unfair, a stay of proceedings must be ordered, a concept that was not considered to be in dispute between the reasons of the majority or the minority in GLJ . The respondent submitted part of the true test is that any trial that prior to the abolition of the limitation period would have been necessarily unfair, so as to warrant the grant of a permanent stay, is still necessarily unfair warranting the grant of a permanent stay after the abolition of the limitation period. This is irrespective of the majority decision in GLJ.

The respondent emphasised that RC is in the exceptional category of cases where the absence of available material is so profound as to deprive the respondent of the ability to respond to the applicant’s allegations and participate in a trial in any meaningful way, thus enlivening the Court’s jurisdiction to grant a permanent stay.

Noteworthy comments from the Justices in oral argument

The true test proposed by the respondent was tested by the Bench. Steward J observed that in essence, the respondent’s submission is that the standard of fairness remains what it was prior to the abolition of the limitation period but the standard of fairness has to be applied through new and unique circumstances, namely cases that would never have run in the past but may now run. The Bench considered what qualifications would be applied in circumstances of determining whether a trial would be unfair, including regarding the lack of availability of records and witnesses.

As with many cases that come before the Full Court of the High Court, the likely result in each case is unclear. The Justices will consider their views on the submissions made in writing and orally, and determine how they each believe the law in this area should be developed.

The consequences for many cases of a similar nature will be significant and practitioners (and clients) in this area of the law await the results with great interest.

For further information, please do not hesitate to contact us.

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    EXV v Uniting Church in Australia Property Trust (NSW) [2024] NSWSC 490