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Commentary, updates, insights
A 'new world' in stay of proceedings

10 November 2023 | timer
The High Court has overturned the decision of the NSW Court of Appeal to permanently stay proceedings arising from sexual abuse that occurred over 55 years prior.


Stay of proceedings in historical child abuse claims

5 September 2022
A key recommendation of the Royal Commission was the removal of limitation periods to claims for personal injury that arise from sexual abuse occurring during childhood; all Australian states and territories have legislated to adopt this recommendation with retrospective effect.


Permanent stay of proceedings: judgment in BRJ v The Corporate Trustees of The Diocese of Grafton

2 September 2022 | timer
The Trustees, represented by Sparke Helmore, were granted a permanent stay of the proceedings brought by BRJ.


Consideration of vicarious liability principles in sexual abuse cases

4 July 2022
Late last year, the Supreme Court of Victoria handed down judgment for the largest award of damages in a historical sexual abuse claim.


Discovery of prior-complaints and privacy concerns in abuse cases

13 June 2022
The recent decision of Lenscak v Trustees of the Marist Brothers & Ors (No 2) arguably expands a defendant’s duty of disclosure regarding prior complaints.


The new legal landscape – historical sexual abuse claims and the effect on Deeds

19 April 2022
Two judgments handed down in 2020 relate to the validity of the Deeds of Release entered by victims of historical sexual abuse.


Additional issues to consider in costs arguments

16 March 2022
This case note considers the issue of costs arguments against the background of Lonergan v Trustees of The Sisters of Saint Joseph & Anor [2021] VSC 651.


Increasing Awards – Assessment of damages in historical sexual abuse cases

3 February 2022
Late last year, the Supreme Court of Tasmania awarded damages of $5.3 million to the victim of historical sexual abuse.


Resources

Disclaimer on the provision of relevant legislation and regulations - Abuse claims are governed by the relevant legislation, case law, court rules, and the inherent power of the court in each jurisdiction. The following is not an exhaustive list of relevant legislation. We have not provided detail where an Act overrides the powers of another Act. Current as at August 2022.

General Resources

State-based legislative arrangements

Queensland
Issue Legislation Relevant Sections
Limitation Limitations of Actions Act 1974 Section 11A
Setting aside settlement agreements Limitations of Actions Act 1974 Section 48
Liability of institutions Civil Liability Act 2003 Part 2A of Chapter 2
Stay of Proceedings Uniform Civil Procedure Rules 1999

Limitations of Actions Act 1974
Section 16(g)

Section 11A

 

New South Wales
Issue Legislation Relevant Sections
Limitation Limitation Act 1969 Section 6A
Setting aside settlement agreements Civil Liability Act 2002 Part 1C
Liability of institutions Civil Liability Act 2002 Part 1B
Stay of Proceedings Civil Procedure Act 2005

Limitation Act 1969
Section 67

Section 6A

 

Victoria
Issue Legislation Relevant Sections
Limitation Limitation of Actions Act 1958 Sections 27O and 27P
Deeds Limitation of Actions Act 1958 Sections 27QD and 27QE
Liability of institutions Legal Identity of Defendants (Organisational Child Abuse) Act 2018

Wrongs Act 1958
Part XIII
Stay of Proceedings Limitation of Actions Act 1958

Supreme Court (General Civil Procedure) Rules 2015
Section 27R

Regulation 23.1

 

Australian Capital Territory
Issue Legislation Relevant Sections
Limitation Limitation Act 1985 Section 21C
Setting aside settlement agreements Justice and Community Safety Legislation Amendment Bill 2022 currently before the Legislative Assembly. The Bill amends the Civil Law (Wrongs) Act 2002 to set aside unjust institutional child abuse settlement agreements Part 8A.3 (proposed)
Liability of institutions Civil Law (Wrongs) Act 2002 Chapter 8A
Stay of Proceedings Limitation Act 1985 Section 21C

 

South Australia
Issue Legislation Relevant Sections
Limitation Limitation of Actions Act 1936 Section 3A
Setting aside settlement agreements Civil Liability Act 1936 Part 7B
Liability of institutions Civil Liability Act 1936 Part 7A
Stay of Proceedings Uniform Civil Rules 2020

Limitation of Actions Act 1936
Rule 12.1 (2)(o)

Section 3A

 

Tasmania
Issue Legislation Relevant Sections
Limitation Limitation Act 1974 Section 5B
Setting aside settlement agreements Limitation Act 1974 Section 5C(3)
Liability of institutions Civil Liability Act 2002 Part 10C
Stay of Proceedings Supreme Court Rules 2000  

 

Northern Territory
Issue Legislation Relevant Sections
Limitation Limitation Act 1981 Section 5A
Setting aside settlement agreements Limitation Act 1981 Sections 53(2) and 54
Liability of institutions The Personal Injuries (Liabilities and Damages) Amendment Bill 2022 passed the Assembly in March 2022, but has not yet been assented to by the Administrator. The Bill amends the Personal Injuries (Liabilities and Damages) Act 2003. Part 3A (proposed)
Stay of Proceedings Northern Territory of Australia Supreme Court Rules Order 23.01; inherent court power

 

Western Australia
Issue Legislation Relevant Sections
Limitation Limitation Act 2005 Section 6A
Setting aside settlement agreements Limitation Act 2005 Section 92
Liability of institutions Civil Liability Act 2002 Part 2A
Stay of Proceedings Limitation Act 2005

District Court Rules 2005

District Court Act 1969 (WA)

Supreme Court Act 1935 (WA)
Section 6A

Rule 24 (2) (p)

Sections 6 and 50

Section 16 (1) (d) (i)

 

 

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