Stay of proceedings in historical child abuse claims05 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. This recognised that it can take decades for survivors to acknowledge the abuse and to take steps to seek justice.
All Australian states and territories have legislated to adopt this recommendation with retrospective effect with some suggesting this has led to an increase in the number of litigated historical child abuse claims.
In contrast to the removal of limitation periods, we have seen an increase in the preparedness of the courts to permanently stay proceedings in circumstances where the lapse of time creates too great a burden on a defendant such that a fair trial is not possible.
Section 67 of the Civil Procedure Act 2005 (NSW) provides that a court may stay proceedings before it, either permanently or until a specified day.
Given the historical nature of child abuse claims and the evidentiary difficulties caused by the passing of time including the unavailability of witnesses and documents, the power of the court to stay proceedings remains an important means of ensuring a defendant’s right to a fair trial.
As the effect of a stay is to end a person’s right to have their matter adjudicated by the court, the power is only exercised in exceptional circumstances and when the interests of the administration of justice require it.1
A defendant seeking a stay of proceedings must demonstrate on the balance of probabilities that any trial would be so manifestly unfair that it would bring the administration of justice into disrepute.2
In determining whether to grant a stay of proceedings in these matters the courts have taken the following factors into consideration:
- The availability of witnesses. In Connellan v Murphy  VSCA 116 the fact that all key witnesses who were adults at the time of the abuse were deceased was a relevant factor as was the fact that the Defendant was a minor at the time of the alleged incidents.
- The availability of the defendant to participate in the proceedings. In cases involving a perpetrator who is deceased or incapacitated the courts have placed great weight on whether the perpetrator was provided with an opportunity to respond to the allegations before their passing or incapacity (see Moubarak bht Coorey v Holt  NSWCA 102; Estate Judd v McKnight (No.4)  NSWSC 1489; The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ  NSWCA 7 ).
- The availability of records. In Fields v Trustees of the Marist Brothers  NSWSC 739 it was determined that the Defendant could not meet the claim in negligence in the absence of relevant individuals and documents about the organisation of the school and measures taken for the care and protection of students.
- Lapse of time between the abuse and commencement of proceedings. In Fields v Trustees of the Marist Brothers  NSWSC 739 the lapse of 55 years was considered very lengthy and a relevant factor. In Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ  NSWCA 78 the Court determined that it was the consequences of the lapse of time rather than the period itself that was the relevant factor.
- The fallibility of memory. It is well recognised that the longer the period of time that has passed since events took place the greater the margin for error. Events that occur in childhood are particularly susceptible to error even if a witness is honest in their recollection (see Longman v R (1989) 168 CLR 79).
- Destruction of evidence. A defendant may be able to prove prejudice if it can be established that due to the delay in commencing proceedings evidence that was once in existence and may have had a bearing on whether the events complained of took place is no longer available.
- The existence of buildings or places. The description given by a plaintiff of the characteristics of a building can be used to confirm or challenge the allegations. In Connellan v Murphy  VSCA 116 the destruction of the Defendant’s family home where the abuse was said to have occurred and loss of opportunity to cross-examine the Plaintiff on the features of the home was a relevant consideration in the exercise of the Court’s discretion to grant a stay of proceedings.
- Steps taken by the defendant. A defendant who has made a forensic decision not to make any or limited inquiries may have difficulty establishing prejudice.
There has been a number of recent decisions where the Court has granted a permanent stay of proceedings.
Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ  NSWCA 78
The Plaintiff commenced proceedings in the Supreme Court of NSW against the Defendant seeking damages for personal injury arising from the sexual abuse perpetrated against her by Father Anderson, a priest in the Diocese of Lismore.
The Plaintiff alleged one instance of sexual abuse occurring in her family home in 1968 when she was 14 years of age. Father Anderson passed away in 1996. No notice of the Plaintiff’s claim was provided to the Defendant nor were the allegations put to Father Anderson prior to his death.
The basis of the application to stay the proceedings was that was not possible fora fair trial to be conducted in circumstances where Father Anderson and virtually all senior members of clergy who could have provided instructions were deceased.
At first instance, although it was accepted that the Defendant was at a forensic disadvantage, the Court refused to grant a stay concluding that there were a number of considerations that demonstrated it was still possible for the Defendant to receive a fair trial. This included documentary evidence that established Father Anderson’s misconduct was well known to his superiors as well as the unsworn statements of other complainants.
On appeal, the court exercised its discretion to stay the proceedings. Although the Court of Appeal agreed with the findings of the primary judge that the contemporaneous records arguably demonstrated that Father’s Anderson’s conduct was known to his supervisors, the focus of the Defendant’s application was the absence of any record that related to the Plaintiff’s specific allegations of abuse and the absence of any opportunity to put those allegations to Father Anderson and others who were appointed within the Diocese at the time. The absence of instructions from the priest also put the defendant in a difficult position in responding to the unsworn statements of other complainants.
The Court of Appeal determined that the issue of whether the sexual assault took place is foundational to the Plaintiff’s cause of action. The Defendant did not have an opportunity to confront the priest with the detail of the allegations and obtain instructions for the purposes of its defence. Any additional inquiries by the defendant would not ameliorate the difficulty faced by the Defendant, that is, the Defendant remained “utterly in the dark” on the central issue of whether the assault took place.
Fields v Trustees of the Marist Brothers  NSWSC 739
The Plaintiff sought damages for the sexual abuse he experienced whilst a student at St Joseph’s School in Lismore. The Plaintiff alleged that the abuse occurred in 1966 and on one occasion in 1967.
The Defendant undertook extensive investigations, which revealed nearly all the School’s records had been destroyed by a flood and the defendant was not notified of the Plaintiff’s complaint until after the alleged perpetrator Brother Celcus had passed away.
There were no witnesses to the alleged abuse and the Plaintiff relied upon tendency evidence from former students and other complainants. In order to meet this evidence, the Defendant was required to investigate each complaint.
The Court held that the use of tendency evidence in these circumstances magnified the prejudice to the Defendant arising from the death of Brother Celcus as the Defendant is unable to investigate or challenge the evidence of the Plaintiff or the other complainants
The court held that there were six factors that warranted a stay of proceedings:
- The Defendant is unable to investigate or to challenge directly the plaintiff’s account of the abuse.
- There are no documents that record the School’s participation at the Catholic Carnival, where the Plaintiff alleges an instance of abuse. It is also not known what role, if any, was delegated to Brother Celcus at that Carnival and who else was in attendance.
- Neither the headmaster of the School, Brother Celcus nor any other Marist Brother on staff in 1966 is alive, which means that the Defendant cannot properly investigate or deal with factual account provided by the Plaintiff.
- The Defendant cannot meet the claim of vicarious liability as there is no record or witness for the Defendant to rely upon in relation to Brother Celcus’ role at the School.
- The absence of relevant individuals and any document about the organisation of the School means that the Defendant is unable to meet the claim in negligence. In the absence of any expert liability report, it is not clear how there could be any evidence about the relevant standards of the time and what measures were taken for the care and protection of the students.
- The lapse of 55 years is very lengthy and longer than the periods considered by courts in other applications.
The Court granted a stay of proceedings and in so doing noted there are other avenues by which victims of historical sexual abuse may seek redress. For example, the National Redress Scheme, which does not require the establishment of liability in accordance with the common law.
Smith v The Council of Trinity Grammar School  NSWCA 93
The Plaintiff sought leave to appeal from the summary dismissal of proceedings commenced by him in August 2021 seeking damages for personal injury resulting from the sexual abuse he suffered in 1981 when he was in Year 6. The alleged perpetrator Rev Sandars was the master in charge of the preparatory school. Rev Sandars passed away in 2012, five years before the abuse was disclosed to the Defendant.
There were no witnesses to the abuse and other potential key witnesses including Rev Sandar’s secretaries, the Plaintiff’s teacher, as well as a PE teacher who may have provided evidence of what he saw at a swimming pool were deceased or unable to be located. There was no evidence that Rev Sandars was ever investigated for any offence.
The Defendant obtained statements from former staff that Rev Sandar’s office door was always kept open and they never suspected him of any sexual misconduct with students.
The Plaintiff argued that the Defendant had amassed sufficient evidence which, if accepted, would likely result in his case failing and therefore a fair trial was possible.
The Court of Appeal cited a number of recent cases including the decision of GLJ and The Council of Trinity Grammar School v Anderson.3 In Anderson one reason for granting a permanent stay was the unavailability of Rev Sandars who was a key witness as to whether another teacher’s offending was known.
The Court of Appeal agreed with the primary judge’s reasoning that the death of Rev Sandar, the unavailability of key witnesses and the absence of any contemporaneous material dealing with the Plaintiff’s allegations warranted a stay of proceedings.
Considerations for defendants
It is well established that the courts will only grant a stay of proceedings in exceptional circumstances and where a fair trial is not possible. Keeping in mind that a fair trial does not mean a perfect trial, defendants carry a heavy burden in establishing prejudice.
Whilst each decision will turn on the facts of the case, the above cases share the following key considerations:
- absence of contemporaneous records or key witnesses
- the alleged perpetrator is deceased or has no capacity
- the alleged perpetrator had no notice of the allegations prior to their death
- notice of the abuse was not provided to the defendant until after the alleged perpetrator was deceased
- tendency statements relied on by the plaintiff’s did not respond to the plaintiff’s allegations of abuse, and
- the defendant made reasonable inquiries to locate witnesses and evidence.
Upon being notified of a complaint, defendants should act promptly to locate witnesses and preserve records.
A defendant seeking a stay needs to satisfy the court that sufficient inquiries have been made to locate witnesses and documents that may have a bearing on whether the misconduct complained of did in fact occur. Where possible, institutions and insurers should ensure the preservation of records including witnesses statements, contemporaneous correspondence, employee records and records of systems in place for the vetting of staff as well as for the monitoring and reporting of abuse.
Considering the increase in litigated historical abuse claims and the evidentiary difficulties that defendants will invariably face, the merits in seeking a stay of proceedings remains an important consideration for institutions and insurers.
1 see Moubarak by his tutor Coorey v Holt  NSWCA 102 at 71 per Bell P 2 Ibid at 159 3see The Council of Trinity Grammar School v Anderson  NSWCA 292
Acknowledgments: Alexandra Kuczerawy and Kate Bookey