Willmot v State of Queensland

Some very sensitive issues were examined by the court in this matter. The appellant, a First Nations woman, sought to appeal a decision of the Chief Justice whereby her claim against the State for damages for personal injuries, alleged to have been suffered by reason of sexual and physical abuse for which the State was alleged to have been negligent in not preventing whilst she was a child in its care, had been permanently stayed. The Court was not of the view that any error had been established on the part of the judge at first instance, and in particular that she had not erred in finding a fair trial could not be had.

Mullins P, Gotterson AJA and Boddice AJA

16 May 2023

The appellant had been placed in the care of the State from infancy as a “State child” in the 1950s and 1960s [3] under the Aboriginals Protection and Restriction of the Sale of Opium Act 1897. Issues arose in relation to the lengthy 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 learned primary judge’s view was that a fair trial was not possible and accordingly the action was permanently stayed. [12], [38]–[46].

Did Her Honour err in granting a permanent stay of proceedings against the State?

Whilst accepting that the principles which apply to the grant of a permanent stay under the discretion conferred by s 11A(5) Limitation of Actions Act 1974 are those set out by Bell P in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, the appellant argued that the exercise of the discretion was restricted to circumstances where it would be unjustifiably oppressive to the defendant to allow the proceeding to continue. [49]. The court did not accept that the test to be applied to a stay included that requirement, noting that such a constraint would be inconsistent with the language of s 11A. [50].

For completeness, the court clarified that the discretion conferred by s 11A(5) is not otherwise narrowed by its legislative context:

“The removal of the limitation period for actions for damages for child abuse effected by s 11A(1) does not... have the consequence that the discretion is not to be exercised in circumstances where it would otherwise be exercised, with the objective of permitting such an action to continue in order to let ‘claimants have their opportunity to tell their stories.’ In other words, primacy is not accorded to the absence of a limitation period over the discretion to stay permanently, or vice versa.” [52]. (footnotes omitted)

Did her Honour err in treating the absence of means by which the defendant could question “foundational witnesses” about the foundational facts underlying the foundational allegations as being determinative?

In the current matter, given the passage of time since the alleged events, only one of the alleged perpetrators is still alive.

The appellant submitted that given she had not alleged vicarious liability on the State’s behalf, the evidence from the deceased offenders would “form only a component part of” her case. The appellant also argued that her Honour had incorrectly treated the absence of these “foundational witnesses” as being determinative. [59].

The court was not persuaded by these submissions, stressing that where damages are sought for child sexual or physical abuse, proof that it occurred is indispensable to success regardless of whether the individual to whom the allegations relate is a party to the proceeding. [60]. Whilst the appellant was not alleging vicarious liability that did not mean that a fair trial could still be had.

In addition, the appellant contended that it was speculation that persons against whom the relevant allegations had been made would facilitate the investigation having regard to their right to decline to participate or testify. [62]. The court did not regard that possibility as “justify[ing] a moderation of the significance of the State’s inability to investigate foundational facts in the exercise of the discretion” [63], also noting that there was no onus on the State to prove that they would have assisted. [64]. Nor did the court share the appellant’s view that it would be a “gruesome irony” if the fact that wrongdoer’s representatives were hindered in procuring instructions from the deceased could suffice to halt proceedings (and that such an outcome would bring the administration of justice into disrepute). [65]. Whilst that submission would carry weight had the proceeding been brought within a limitation period of several years and had there been adequate contemporaneous evidence to permit a fair trial, that was simply not the case here. [66]. The available evidence in the matter was not of a quality which would be able to restore the State’s inability to investigate, obtain instructions, lead evidence or cross-examine about the foundational allegations. [68]. In view of the unavailability of persons who could give instructions and/or evidence about crucial aspects of liability, the court endorsed the learned primary judge’s conclusion that the defendants would be deprived of any genuine opportunity to participate in the hearing. [69]. In its view, there was a risk that such a trial would amount to “a solemn farce” (see Keane JA in Page v The Central Queensland University [2006] QCA 478, [24]). [70].

Did her Honour err in finding that in terms of causation it would be “insurmountably difficult to extract” the evidence of the sole alleged perpetrator who was still alive from the other allegations as that finding was against the evidence and the weight of evidence?

In addressing this ground, the court had regard to the expert evidence, provided by a psychiatrist engaged by the appellant, which had been considered by the learned primary judge. [76]. That expert opined that “[it] is difficult to disentangle the effects of the individual abuse incidents as they are so entwined”. With that in mind, it was plainly not the case that the proposition accepted by Her Honour was unsupported by or contrary to the evidence. [77].

Did her Honour err in finding that the evidence of a witness to one alleged incident of abuse with a dead alleged perpetrator “highlighted the unfairness” faced by the defendant and served to “render the trial more unfair” because the defendant was deprived of taking instructions from the alleged perpetrator?

The appellant contended that her Honour ought to have treated the evidence which a witness could potentially provide at trial as amounting to additional independent evidence that could assist in determining the truth or otherwise of the allegations she had made. [82]. In the lead judgment, Justice Gotterson succinctly commented that it was “unrealistic in context” to characterise the witness’s evidence as being independent in circumstances where she was separately suing the State for alleged sexual assaults by one of the same alleged perpetrators, against her. [83]. In the event the witness gave the foreshadowed evidence, the State would be placed in the position of having to challenge it in cross-examination without any contradictor, any other individual who could provide instructions, or any relevant contemporaneous documentary evidence – that is, the State would be “cross-examining in the dark”. [84].

None of the grounds of appeal succeeded. [86].

Disposition

The appeal was dismissed.

A Jarro