In a big day for decisions, the High Court of Australia has handed down highly anticipated judgments in the Western Australian matter of RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43 and the Queensland matter of Willmot v The State of Queensland [2024] HCA 42.
Permanent stays of both sets of proceedings had been granted under the inherent jurisdiction of the Court to do so in exceptional circumstances, where the lapse of time has had a burdensome effect on the defendant to such an extent that a fair trial is not possible.
The High Court granted special leave to appeal in both cases and overturned the permanent stay of proceedings in RC, and in relation to three of five claims in Wilmott.
These decisions, along with the 2023 High Court decision of GLJ v The Trustee of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, further limit the prospect of defendants obtaining a permanent stay in proceedings for cases involving child sexual abuse, with the High Court effectively relying on the trial process and satisfaction of the burden of proof to determine the proper outcome of these cases.
This is notwithstanding the passage of time and the loss of evidentiary material, including the death of the alleged perpetrators.
RC v The Salvation Army
In 2018, the plaintiff commenced proceedings against the Salvation Army, the owner and operator of a children's home, alleging that he was subjected to sexual and physical abuse by a lieutenant of the home, Lt Swift, from about August 1959 to April 1960. The plaintiff claimed that the Salvation Army had breached its non-delegable duty to exercise reasonable care for the plaintiff's safety, breached the statutory duty of care in the Child Welfare Act 1947 (WA), and was otherwise vicariously liable for the intentional torts allegedly committed by Lt Swift.
The Salvation Army contended that, due to the lapse of time and death of relevant witnesses (including the deaths of Lt Swift and the officer in charge of the home, to whom the plaintiff claimed he had made a complaint regarding Lt Swift's alleged conduct), it could not meaningfully defend the proceedings. It pleaded non-admissions and denials on the basis it could not establish the plaintiff was at the home at the time, did not know and could not admit the sexual abuse and assaults occurred, and, after extensive searches, was unable to source any documentation or information that would support or refute the plaintiff's allegations.
Underlying judgments
The primary judge in the District Court of Western Australia granted a permanent stay of the proceedings, with the Court of Appeal of the Supreme Court of Western Australia later dismissing the plaintiff's appeal.
The plaintiff applied to the High Court of Australia for special leave to appeal.
Decision
The High Court unanimously found that leave to appeal ought to be allowed and the permanent stay was to be set aside.
Gageler CJ, Gordon, Jagot and Beech-Jones JJ formed the majority and found:
- The death of Lt Swift meant that the Salvation Army had lost 'no more' than the possibility of a bare denial of the allegations against him. The majority relied on the description provided by a legal practitioner who had acted for the Salvation Army on abuse claims since 1994, who asserted that "officers almost always den[ied] any allegations of abuse," and even when admitted, "the admissions [were] often partial and limited to particular types of abuse (ie occasional hitting as punishment, but not sexual abuse)."
- The death of the officer in charge meant that, at most, the Salvation Army had lost evidence that that officer could deny that a report had been made to him. Any other evidence the officer could give, such as that a report had indeed been made, could only assist the plaintiff.
- Only two of the other fourteen officers at the home during the relevant period were identified as still being alive; however, enquiries to them had not been pursued, apart from a request to one officer's daughter to obtain answers to questions, which she did not provide, and a file note following a telephone call with the second officer in 2020.
- The Salvation Army had not attempted to seek information from Lt Swift's wife while she was still alive and had capacity. The Salvation Army had been dealing with claims pertaining to Lt Swift since the early 2000s, and on that basis, had an opportunity to seek further information from the wife, particularly as she too was an officer of the Salvation Army.
- The Salvation Army was otherwise not in the dark about the precise nature of the plaintiff's allegations, in circumstances where at least ten further men alleged they had suffered abuse by Lt Swift whilst at the home between the 1950s and 1960s.
Ultimately, the majority found that the Salvation Army had not discharged its 'heavy onus' to obtain a stay because it had not identified that the trial of the joined issues would be unfair, saying cases where a party can do no more than deny the main allegation are tried in criminal courts every day. Trial was the appropriate place to test the plaintiff's evidence and a trial of the allegations is not unfair merely because a pathway to a successful challenge to the plaintiff's evidence had not been found. Further, the Salvation Army had not identified documents known to it to be lost, rather an inability to identify whether relevant records existed.
Of some significance was the evidence:
- of Commissioner Tidd and Mr Walker of the Southern Territory of the Salvation Army before the Royal Commission into Institutional Responses to Child Sexual Abuse, to the effect the Salvation Army had failed to adequately explore, investigate and respond to reported abuse at its homes. The Court concluded that by no later than August 2015 the Salvation Army had been able to draw conclusions about what it did and did not do during the relevant period, and also to acknowledge that Lt Swift had assaulted other boys during the same period; and
- that at least 10 men had been abused by Lt Swift in the 1950s and 1960s including at the home, with uncontradicted evidence. The Salvation Army had been aware of allegations against Lt Swift for years, if not decades.
Whether the above evidence was admissible at trial was deemed to be irrelevant. The evidence was, however, relevant to the majority's consideration of a permanent stay to the extent it showed the information available to the Salvation Army and the steps it would likely have taken had RC's allegations come to light earlier.
Gleeson J, Edelman J and Steward J each gave separate judgments ultimately agreeing to grant special leave and that the appeal be allowed.
Her Honour Justice Gleeson would have only allowed the appeal in part, finding it would be 'unjustifiably oppressive' to require the Salvation Army to defend the allegations pertaining to vicarious liability due to the significant lapse in time and death of relevant witnesses who would have been able to give evidence about the scope of Lt Swift's employment, if he was an employee.
Willmot v The State of Queensland
The plaintiff brought proceedings against the State of Queensland in respect of alleged sexual and serious physical abuse she suffered as a child when she was under the care, management and control of the State from infancy in 1954 to about September 1966. In addition to being a 'State Child' the plaintiff was also subject to the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) until she was 18 years old, in 1972.
The plaintiff alleged the State breached its duty to her in relation to four separate abuse allegations whilst in the care of the State:
- Ongoing sexual abuse by her foster father, Jack Demlin (Foster Father's sexual abuse), and beatings by her foster father and foster mother, Tottie Demlin (Carers' physical abuse respectively);
- Beatings and flogging while residing in the State operated dormitory, Cherbourg Girls' Dormitory (Dormitory physical abuse);
- Sexual abuse by an uncle, 'NW', while visiting her grandmother and still under the care of the Cherbourg Girls' Dormitory (NW sexual abuse); and
- Sexual abuse by a cousin or great uncle, 'Uncle Pickering', during a separate visit to her grandmother (Pickering sexual abuse).
The plaintiff pleaded that a non-delegable duty of care was owed, which the State conceded. No claim was made alleging vicarious liability of the State.
The State alleged in its defence that the Carers' physical abuse and the Dormitory physical abuse were not 'serious physical abuse' in accordance with the Limitation of Actions Act 1974 (QLD), which has removed limitation periods for sexual abuse and 'serious physical abuse'. The statutory provision however did not rule out judicial intervention such as a stay.
Given the periods of abuse occurred over 50 years ago, the evidence available relating to the facts of each of the allegations had been greatly impacted. This included a lack of documentation recording the alleged assaults and the death of integral witnesses and alleged perpetrators, namely Mr and Mrs Demlin, Uncle Pickering and several individuals who attended the State Dormitory during the period of the plaintiff's alleged abuse.
Underlying judgments
On 14 December 2021, the State filed an application seeking a permanent stay of the proceedings due to the impoverishment of evidence and the subsequent unfairness to which it faced as a result. The primary judge, Bowskill CJ, made an order for the proceedings to be permanently stayed, finding that exceptional circumstances arose in the case, jeopardising the fairness of a trial.
The plaintiff's appeal was dismissed. The plaintiff applied to the High Court of Australia for special leave to appeal.
Decision
The High Court affirmed the approach to stay applications, that they are not a trial on the issues between the parties, but instead for an applicant to show "how and why the absence of contemporaneous or other evidence would impede it answering the case against it such that the trial of a particular claim will be necessarily unfair." 1
By a majority of the High Court, the plaintiff's appeal with respect to the Foster Father's sexual abuse, the Dormitory physical abuse, and NW sexual abuse was upheld, so that the permanent stay dismissed. However, the High Court maintained permanent stays in relation to the allegations of the Carer physical abuse and the Pickering sexual abuse.
The reasons addressed each of the plaintiff's allegations of abuse:
- Regarding the allegation of the Foster Father's sexual abuse, the Court found that the passing of Mr and Mrs Demlin did not significantly disadvantage the State's opportunity to make inquiries; noting that a further individual, RS, who was identified as a witness to the alleged assaults, presented ample opportunity for the State to conduct investigations.
- The claim relating to the Carers' physical abuse was stayed by the Court following a finding that the allegations were "so vague as to be incapable of meaningful response, defence or contradiction" 2.
- As to the Dormitory physical abuse, the Court stated that, although the State's ability to participate in a trial is "undoubtedly restricted by the time that has passed", such restrictions of opportunity are "not so burdensome so as to render the trial unfair" 3. The basis of this decision was the availability of further avenues to conduct investigations into claims made and circumstantial facts outside of deceased witnesses, including documents such as a 1951 letter complaining about the perpetrator and other contemporaneous documents authored by the Matron of the Dormitory which referred to the perpetrator 'caning' of the children.
- The Court found that, for the claim relating to the NW sexual abuse, when the claim was commenced in 2022, the State had an avenue to investigate the claim as NW was aged 78 and still alive and contactable. There was no evidence led that the State had spoken with him, or attempted to take a statement from him, and there was nothing to suggest the State could not do so now 4. Conversely, the plaintiff's solicitors had spoken with NW and his wife the day before the hearing before the primary judge, and that he had described his memory then as 'pretty good' and he would be happy to speak again 5. No significant disadvantage against the State was found to exist.
- As to the Pickering sexual abuse, the Court found the State's loss of opportunity to investigate foundational and basic facts, with the Court noting that the plaintiff was unable to recall Uncle Pickering's full name, which deprived the State from properly identifying the full name of the alleged perpetrator. As such, it was decided that the State was "significantly prejudiced in defending the claim" 6 and the Picking sexual abuse allegations could not be fairly tried.
Implications
The High Court has provided an instructive breakdown of the intersection between a permanent stay of proceedings and the statutory provisions that have removed the time-bar on commencement of claims about child sexual abuse.
These decisions confirm the very high threshold and scrutiny applied to an application seeking a permanent stay. An application for a permanent stay by a defendant would need to be carefully considered and well prepared to show the burden on them such that they are unable to respond to the allegations despite their attempts to do so.
These decisions will also have a profound impact on the management of historical abuse claims for institutions, as their prior investigations and actions will be significantly scrutinised on any application for a stay.
While the deaths or incapacity of relevant witnesses and perpetrators, and loss of relevant documents and information, may be lost over a substantive period of time, these barriers alone may not discharge the heavy onus that a defendant has to prove it would be forensically disadvantaged at trial to render a hearing of the issues unfair to that defendant.
Although defending a claim may be very difficult and challenging for an institution after a long passage of time, the plaintiff also has forensic challenges in establishing the necessary elements to prove their claim to the required standard after a lengthy period of time and in circumstances where the traumatic incidents occurred in their youth. A permanent stay is not about testing that evidence as to its veracity, but simply whether a defendant can fairly respond to it. Given the onus on a defendant in a permanent stay, a careful forensic analysis of the allegations and the available evidence would be necessary to consider whether there is a reasonable prospect of a stay application being upheld.
Footnotes
1. Majority reasons of Gageler CJ, Gordon J,
Jagot J and Beech-Jones J at [48].
2. Glleson J at [196]
3. Gleeson at [203]
4. Majority reasons at [78]
5. Majority reasons at [79]
6. Gleeson at [194]
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
