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This recent decision considered whether an exceptional case arose to permit a child abuse victim to pursue a claim against the State for damages for personal injuries. From infancy, the plaintiff had been in the care of the State as a “State child” in the 1950s and 1960s. Issues arose in relation to the passage of time since the alleged events occurred, especially the inherent difficulty presented by the fact that many of the key witnesses were deceased. In view of the consequences of the passage of time the court’s view was that a fair trial was not possible and accordingly the action was permanently stayed.
22 August 2022
The plaintiff, an Aboriginal lady, was subject to two Acts, being the Aboriginal Protection and Restriction of the Sale of Opium Act 1897 and the State Children Act 1911 throughout childhood. –. She sought to recover damages for negligence in an amount of $1,764,620.83 from the State for psychiatric injury allegedly resulting from sustained sexual abuse and/or serious physical abuse which she endured whilst in the State’s care in foster care, at the girls’ dormitory at Cherbourg, and whilst visiting her grandmother’s house over the period from 1957 to 1967. She claimed that the State had inadequately monitored and supervised both herself and those into whose care she was placed. , .
The complexities of establishing liability on behalf of the State
The plaintiff raised her allegations in 2008 and again in 2019 and 2020. –. There was sparse surviving documentary evidence relevant to her claim. –. In its defence the State pleaded an inability to ascertain the truth or falsity of the allegations in circumstances where the material witnesses had long since passed. . The combination of these factors hindered the plaintiff’s ability to progress her claim.
Relevant principles and authorities
The court possesses a wide discretion to permanently stay a proceeding as “an incident of the general power of a court of justice to ensure fairness”: see Jago v District Court (NSW) (1989) 168 CLR 23 at 31 per Mason CJ. Proceedings may be stayed permanently in exceptional circumstances, which include where the proceedings or their continuance would be vexatious, oppressive, or manifestly unfair. They are also granted in circumstances where it is demonstrated, on the balance of probabilities, that it will not be possible to obtain a fair trial: see Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218 at  and  per Bell P. Both delay and time passing can thwart the possibility of a fair trial. In the present matter, the potential unfairness arose from the depletion of the evidence as a whole, a matter which her Honour stressed was not the plaintiff’s fault. .
Stays are only considered justified where a trial would be rendered so unfair as to bring the administration of justice into disrepute due to the consequences of the delay on the evidence: see The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762 at – per Bathurst CJ. Such a situation can arise where, for example, due to the time which has elapsed witnesses are no longer in a position to provide evidence on a critical aspect of liability, resulting in the “practical inability” of running a properly functioning hearing (including reaching a decision with the benefit of a real understanding of the facts): see Newcastle City Council v Batistatos (2005) 43 MVR 381 at 405–406.
The caselaw amply demonstrates the difficulties which defendants encounter in terms of obtaining instructions in relation to claims which are affected by the passage of time: see Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218 and The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ  NSWCA 78. Obviously, where it is not practicable to call upon critical witnesses, problems abound and parties can be deprived of an opportunity to meaningfully participate.
Where it is apparent that a fair trial is unviable, a permanent stay must be granted: see Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore  NSWSC 1776; Chalmers v Leslie (2020) 6 QR 547 and GMB v Uniting Care West  WADC 165.
Whether this proceeding ought be permanently stayed
Regrettably, it was plainly the case that given the evidentiary challenges, a fair trial could no longer be had. The issues impeding the defendant’s ability to obtain any instructions were many, including the fact that it was unable to comprehensively examine the facts underpinning the alleged wrongful acts which were critical to establishing liability on its behalf. An obvious difficulty was the fact that the key witnesses were deceased, and the allegations had not been put to them whilst they were alive. As such they had not been afforded the opportunity of responding to them and no records existed which were capable of overcoming this difficulty. .
Her Honour did not regard the fact that one alleged perpetrator was still alive as capable of supporting a different conclusion. The reality was he was now aged 78 and questioning him about events which had allegedly occurred more than 60 years ago would present clear difficulties. . Similarly, the contention that there was a live witness to the alleged abuse was of minimal assistance to the plaintiff in overcoming the unfairness of the trial. .
The Chief Justice’s penultimate paragraph was very well reasoned. She stressed that the outcome was not the fault of the plaintiff however the conclusion had been reached:
“having regard to the consequences of the passage of time ... The consequence, that this decision results in the plaintiff not being able to pursue her claim, weighs heavily. However, the time that has passed, since the events in question, and the consequences of that passage of time for the availability of witnesses and evidence, is such that a fair trial is not possible and, accordingly, the exceptional step of granting a permanent stay of the proceedings is warranted.” .
The proceeding was permanently stayed and the parties were heard as to costs. .