Australia: Permanent stay applications increase in importance with removal of limitations period for child abuse claims

Key takeaways

• The courts will need more than an effluxion of time in order to issue a permanent stay in historical sexual abuse claims.
• An emphasis will be placed on the defendant's ability to test evidence and the availability of all witnesses and primary source materials.
• The jurisprudence to date primarily relates to individual defendants. It is yet to be seen if the courts will take a different approach where the defendant is an institution.

While the Royal Commission into Institutional Responses to Child Sexual Abuse concluded in 2017, the impact of the long-running inquiry will be felt for many years to come as state and territory governments implement the recommendations contained in the Final Report by the Commission.¹ The 99 recommendations made with a view to improving the prospects for survivors of historical child abuse to obtain compensation can be broadly classified into two categories: the creation of a national redress scheme and reforms to the existing civil laws.

The complexity of a cross-jurisdictional voluntary redress scheme involving both government and private institutions has meant that while the legislation has been enacted which, in July 2018, brought into existence the National Redress Scheme for People Who Have Experienced Institutional Child Sexual Abuse, there are a number of government and non-government institutions that were closely examined in the Commission that have not yet officially joined as participants in the Scheme.

On the other hand, the recommended legislative changes are being adopted around Australia without notable objection or difficulty. Although some civil law recommendations which require a fundamental change to the principles of law, such as the creation of new non-delegable duty of care, have not been universally adopted by different governments, all states and territories have now adopted and implemented Recommendations 85 to 87 under the Redress and Civil Litigation Report² which state:

85. State and territory governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child.
86. State and territory governments should ensure that the limitation period is removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past.
87. State and territory governments should expressly preserve the relevant courts' existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period.

The effect of these changes, particularly in the absence of a fully operational national redress scheme, has been an increase in the number of historical child abuse claims being litigated. With a reduced range of traditional defences available to defendants, it is expected that there will be an increase in applications for the court to exercise its preserved power to stay proceedings, especially considering that these claims are historical by nature.

In Victoria and New South Wales, two of the first jurisdictions to remove the limitation of action for child abuse cases, we can see the beginnings of an emerging jurisdiction dealing with the circumstances in which a court will take the serious step of granting a permanent stay to end a victim's rights to seek civil law damages.

Historical principles

The power of a court to issue a permanent stay is not a new concept, forming part of the inherent jurisdiction of a court's powers; the power is clearly enunciated in the High Court decision of Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council³ (Batistatos) where the majority of Gleeson CJ, Gummow, Hayne and Crennan JJ stated:

The plaintiff certainly has a "right" to institute a proceeding. But the defendant also has "rights". One is to plead in defence an available limitation defence. Another distinct "right" is to seek the exercise of the power of the court to stay its processes in certain circumstances. On its part, the court has an obligation owed to both sides to quell their controversy according to law. The truth is that limitation periods operate by reference to temporal limits which are indifferent to the presence or absence of lapses of time which may merit the term "delay".

The "right" of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.⁴

The majority decision in Batistatos dismissed the injured parties' appeal.

Ten years earlier, the High Court had looked at the discretion of the court to end an injured party's civil rights in circumstances of delay in the case of Brisbane South Regional Health Authority v Taylor⁵ (Brisbane South). In that case, the decision considered the extent to which beneficial rights for plaintiffs that have been bestowed by statutory extensions to limitation periods should be exercised and concluded in the plaintiff's favour, stating:

... it may still be just, in the particular case, to decline to order an extension having regard to any proved or inferred prejudice to the defendant or to all the circumstances of the case. In judging prejudice, for the purpose of considering the order extending time, the matter to be weighed is the increase of prejudice after the expiry of the ordinary period of limitation. Until that time the law, as expressed in the [Limitation of Actions] Act [1974 (Qld)], envisages that the defendant must accept any prejudice or delay without complaint.⁶

What is clear from these decisions is that there is a delicate balancing act between the rights of a plaintiff and the ability of the defendant to properly respond to the allegations in contention (Batistatos) and that the origin of any purported prejudice must arise in the period between the ordinary limitation period and the time that the action was brought (Brisbane South).

With these concepts in mind, the recent permanent stay applications have seen a variance in decisions in the few matters that an application has been sought in historical abuse claims since the limitations period has been removed.

Historical abuse analysis

Connellan v Murphy

The first decision to consider a permanent stay application in a matter where the limitations period has been removed was the Supreme Court of Victoria Court of Appeal matter of Connellan v Murphy⁷ (Connellan) in which the defendant appealed a decision which dismissed a permanent stay application.

The events in question in this matter were alleged to have occurred in "approximately 1967 or 1968" and the accused defendant denied the allegation that the plaintiff was repeatedly sexually abused by two brothers (one of whom was the defendant) who were staying with the same family that the plaintiff had been placed with for a short period following the death of the plaintiff's father.

In this matter, both the plaintiff and defendant were children when the events were alleged to have occurred and the Court of Appeal focused on the lack of available witnesses due to the passing of time, namely the carers and parents of the parties involved and the scarcity of any other evidence of assistance. The court determined that this lack of evidence was fatal to the ability for a fair trial to be held:

In the present case, and in the light of the specific facts of this case, we are of the view that it would be plainly unjust to permit the plaintiff's proceedings to continue. The defendant cannot realistically be expected to defend a cause of action that is alleged to have accrued almost five decades ago in circumstances where so little is known about the surrounding circumstances and facts, and all of the principal witnesses who were adults at the time are now dead. A trial of the plaintiff's allegations would be one that proceeded on a very unsure footing with mere scraps of evidence, the reliability of which must seriously be doubted, being tendered and relied upon. As genuine as the plaintiff's recollections might be, it would be unjustifiably burdensome to require the defendant to now attempt to defend allegations made against him as a child so many years ago. It follows that in our view, and with respect to the judge's careful analysis in her reasons for judgment, the complaints made by the defendant ... must be upheld. While the onus borne by the defendant was a heavy one, in the exceptional circumstances of the specific facts in this case we are of the opinion that it has been discharged, and the defendant is thus entitled to a permanent stay of the plaintiff's proceeding.⁸

The Court of Appeal emphasised that, despite the availability of some witnesses from the time that could be recalled by the defendant, the primary judge failed to give appropriate weight to the fact that the defendant was 13 years old at the time of the alleged events, that the defendant's brother (a key witness) was also being asked to recall events from when he was also a child, the uncertainty of other witnesses and the unavailability of critical witnesses, in particular the plaintiff's mother.

Lake v Trinity Grammar School

The first New South Wales consideration of a permanent stay application in a historical abuse claim brought post-Limitation Act 1969 (NSW) changes was the District Court decision of Lake v Trinity Grammar School.⁹

In contrast to Connellan, the plaintiff in this matter commenced proceedings solely against the school at which the abuse was alleged to have been committed by two employees between 1976 and 1981. The accused were both deceased (although one accused had formally denied the allegations during a police interview prior to his death) and the plaintiff's cause of action was based on a breach of duty on the part of the operators of the school, primarily the school principal at the relevant time who was also deceased.

The defendant presented the evidence which was available to it which included employment files, school records and police investigation materials as well as evidence of its inability to locate the relevant insurer.

In her consideration of the evidence and the submissions made on behalf of the plaintiff, Balla J found that the death of the two accused had caused the defendant prima facie prejudice and determined that:

... the school has no real means of putting before the Court any evidence to test the plaintiff's claims. Any trial would be no more than a "formal enactment of the process of hearing and determining the plaintiff's claim".
Issues also arise as to the reliability of the memory of the plaintiff, the likelihood that records have been lost and the inability to identify the insurer. Accordingly I am satisfied that any trial would be manifestly unfair and would bring the administration of justice into disrepute.

It is of note that the court rejected evidence of tendency with respect to one of the accused in the face of the overwhelming factual and documentary burden faced by the defendant to refute the allegations when they could not otherwise call the accused to give evidence.

Garling J decision

The next decision to consider these issues was a New South Wales Supreme Court decision by Garling J¹⁰ which considered an application for permanent stays in claims brought by three separate claimants against the estate of an accused who had died in 2016 after having been charged and making limited admissions with respect to one of the plaintiffs.

With the exception of one plaintiff who had also joined the State of New South Wales (alleging breach of duty in allowing him to abscond from school), these claims were brought against the estate of an individual alleging that he had sexually assaulted them on discrete, unrelated occasions over a number of years that collectively ranged between 1978 and 1993. The application being heard was a summons brought by the estate seeking to permanently stay, or in the alternative dismiss, each of the three plaintiffs' claims.

Despite the death of the accused, Garling J was not convinced that his inability to give evidence placed the defendant estate in a position where it was unable to make any inquiry to assist in its defence of the claims:

The position, as it seems to me, is simply this, that such enquiries as were made by [the plaintiff's solicitor] whilst [the plaintiff] was alive, revealed that [the plaintiff] largely accepted the events described by [the defendant] had taken place but said that they were consensual. With respect to other claimants who gave similar accounts, broadly speaking he agreed that the conduct had taken place, but again sought to defend it on the basis that it was consensual, or else that he reasonably believed that it was lawful.

In taking this position, the decision proceeds to crystallise the real importance of evidence beyond that of the accused and their victim in historical claims of child abuse matters. The nature of these claims is that it is highly likely that the relevant events occurred many years ago and a hearing is only likely to proceed to trial in circumstances where the accused will deny or have diminished memories of the pertinent facts which places both parties at a disadvantage in having a fair trial. It is now clear though that the court requires something more than the simple effluxion of time to issue a permanent stay, given the finality of such a decision.

Garling J noted the subsequent "perfunctory" attempts by the estate to obtain evidence to counteract the allegations made by the plaintiffs or "ascertain any of the known facts or corroborative material which would assist in the defence of the claim, in circumstances where enquiries may have been productive".

The decision focused on the ability to test the allegations made by the plaintiffs and dismissed the summons requesting a permanent stay, citing the reasons why the defendant had not proven that there was sufficient evidence available to hold a fair trial. These reasons included:

• the fact that the claimants were alive and available to be cross-examined on their evidence
• that the claimants' conduct and reputations could therefore also be challenged
• other witnesses to whom the claimants had disclosed the allegations, such as medical practitioners and police, were available which would allow for a close examination of the consistency of the claimants' allegations
• there were limited admissions as to the alleged behaviour made by the accused prior to his death which could be corroborated by evidence and
• there were physical and objective evidence available against which the recollections of the claimants could be tested including the house at which the abuse was alleged to have occurred, and records demonstrating vehicle ownership and photographs were available to verify or refute the recollection of events, places and times described by the claimants in their evidence

As the defendant bears the onus of proof in an application for a permanent stay, the above issues place a high burden on the defendant to conduct inquiries so as to demonstrate the extent, or otherwise, of evidence in order to satisfy the court that a stay should be granted.

While this might seem an extremely high threshold, it is worth noting that the accused had, in effect, admitted to the relevant behaviour.

At the time of writing there was a further unsuccessful application for a permanent stay heard by the Supreme Court of New South Wales although the judge's reasoning had not been handed down.

Conclusion

The jurisprudence around applications for permanent stays in claims for compensation arising from historical child abuse is still developing in the wake of the removal of ordinary time limits. The published decisions so far have shown a move beyond a mere analysis of the availability of witnesses and the passing of time into a more detailed consideration of the defendant's ability to test the evidence of available witnesses with the assistance of primary source materials.

It is lesser known how the courts will approach permanent stay applications from institutional defendants that did not commit the underlying abuse, however, it seems that there will continue to be significant evidence required for a court to make such an order to prematurely end a civil claim, particularly given the social utility behind the underlying reasons that the limitation periods have been removed for victims of child abuse.

This article was originally published in the LexisNexis Australian Civil Liability Newsletter Volume 15 Number 7&8.

Footnotes

¹Royal Commission into Institutional Responses to Child Sexual Abuse Final Report (2017) www.childabuseroyalcommission.gov.au/final-report.

² Royal Commission into Institutional Responses to Child Sexual Abuse Redress and Civil Litigation Report (2015) www.childabuseroyalcommission.gov.au/sites/default/files/file-list/final_report_-_redress_and_civil_litigation.pdf.

³ Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 226 CLR 256; 227 ALR 425; [2006] HCA 27; BC200604226.

⁴ Above n 3, at [63]–[65].

⁵ Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1.

⁶ Above n 5, at 25.

⁷ Connellan v Murphy [2017] VSCA 116; BC201703683.

⁸ Above n 7, at [65]–[66].

⁹ Lake v Trinity Grammar School (NSWDC, Balla DCJ, 126642.

¹⁰ Decision restricted [2018] NSWSC 462 (25 May 2018).

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