A difficult trial is not an unfair trial: The high threshold of permanent stays

The plaintiff, a former resident at Nazareth House, brought a claim against the Sisters of Nazareth for alleged sexual, physical and psychological abuse suffered when she was a child. Key issues related to whether an application for a permanent stay on the grounds of prejudice by reason of a loss of evidence due to the passage of time and an inability to identify the alleged perpetrators constituted the kind of ‘exceptional circumstances’ so as to justify a stay.

In issue

Having regard to the 'new normative structure'¹ created after the removal of limitation periods in historical child abuse cases, the Victorian Court of Appeal was required to consider whether the following issues constituted the kind of 'exceptional circumstances'² that warrant a permanent stay of the proceedings:

1. the inability of the plaintiff to identify alleged perpetrators
2. death and incapacity of key witnesses
3. loss or destruction of documentary evidence, and
4. the age of allegations.

The background

The plaintiff, a former resident at Nazareth House, sued the Sisters of Nazareth (the defendant) for damages relating to allegations of historical sexual, physical and psychological abuse said to have occurred during her placement at Nazareth House. Specifically, the plaintiff alleged inter alia that she was sexually abused by three priests employed at Nazareth House on various occasions between 1964 and 1967 (the sexual abuse).

The defendant applied for a partial stay of the proceeding in respect of the alleged sexual abuse on the basis of forensic prejudice associated with the lapse of time (of some 55 years) and by reason of the plaintiff’s inability to identify the three priests.

The application was dismissed at first instance and the defendant appealed to the Victorian Court of Appeal on the basis that the Associate Judge erred in concluding that the plaintiff’s inability to identify the priests and/or the religious orders of which the priests were a part could not be considered an exceptional circumstance to justify a partial stay of the proceeding.

The decision on appeal

Ultimately, the Victorian Court of Appeal affirmed the Associate Judge’s decision to refuse the stay application.

The Victorian Court of Appeal applied the principles established in the High Court decisions of GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (GLJ)³, Willmot v Queensland (Willmot)⁴ and RC v The Salvation Army (WA) Property Trust (RC)⁵ insofar as it accepted that issues such as the absence of documentary evidence and the death/incapacity of witnesses (including alleged perpetrators) are to be taken as 'unexceptional' circumstances and an 'inevitable consequence of the passage of time'.

The Court of Appeal focused on whether the forensic prejudice suffered by the defendant in respect of the parties’ inability to identify the alleged perpetrators and a loss of evidence (whether it be from the death/incapacity of witnesses, or loss or destruction of documents) amounted to 'exceptional circumstances' so as to justify a stay.

Whilst the Court accepted that the identification of the priests would be relevant and potentially helpful to defend the claim, it ruled that the plaintiff’s case was still capable of being defended on account of:

1. the defendant’s ability to call on other witnesses (i.e. other Sisters present at Nazareth House during and after the alleged abuse period)
2. the availability of material to test the plaintiff’s allegations of sexual abuse. In this case, the plaintiff had made a statement in 2008 and previously placed the Sisters on notice of her claim in 2013, making particular reference to allegations of physical and psychological abuse, and
3. the plaintiff’s preclusion from calling tendency evidence about the three priests.

In light of this evidence, the Court ruled that the defendant was not limited to a bare denial and there was sufficient material available for the defendant to defend the proceedings. Notably, the Court emphasised that the prejudice arising from the passage of time and the inability of the parties to identify the alleged perpetrators did not in itself render a trial to ‘fall below the irreducible minimum standards of a fair trial’.

Implications for you

This decision reiterates High Court authority that the inability of a plaintiff to identify a wrongdoer is not itself unusual. That is, the impoverishment of evidence and in particular, the inability of a plaintiff to name the alleged perpetrators, will not be regarded as exceptional so as to justify a stay of proceedings in circumstances where the defendant is not limited to a bare denial.

It also emphasises the normative structure in which stay applications are to be determined, having regard to the abolition of limitation periods in historical child abuse claims.

¹ GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 23 (‘GLJ’)
² Ibid.
³ Ibid.
⁴ [2024] HCA 42
⁵ [2024] HCA 43