Court orders permanent stay for historical abuse claim

02 February 2021
Trigger Warning: This article contains details about sexual assault which may be upsetting for some readers. Reader discretion is advised.

This was a successful application for a permanent stay of historical abuse proceedings in circumstances where no allegations of abuse were made before the death of the alleged perpetrator.

In Issue

  • The conflict between the plaintiff's right to pursue his civil claim and the rights of the first defendant to make a meaningful defence
  • Whether a permanent stay of proceedings should be granted

The background

The plaintiff was at various times between 1958 and 1961 a resident of Mofflyn House, a child residential facility which consisted of a number of cottages. Each cottage had a house-mother employed by the first defendant as its supervisor. In an affidavit and statement to the Royal Commission in 2017, the plaintiff claimed that when he was nearly 6 years of age and residing at Mofflyn House, he was placed in Mum Moyne's (the alleged abuser’s) cottage and required to bath daily, during which time he alleged she abused him.

Following the Royal Commission, the plaintiff commenced proceedings against the first defendant (the operator of the child residential facility), and the State of Western Australia. The court was asked to consider the first defendant’s application for a permanent stay of the plaintiff’s proceedings. The first defendant argued its ability to defend the claim was compromised as the abuser was deceased and not able to give evidence; its ability to deal with the plaintiff's allegations was therefore undermined; it could not meaningfully contest the claim; and was unable to receive a fair trial.

The decision at trial

The court noted that in relation to an application for a permanent stay of proceedings, the fundamental principle is that a plaintiff is entitled to have his action tried in court, subject to the inherent jurisdiction of a court to stay proceedings if the interests of justice so demand.

The court noted that the law in relation to granting a permanent stay is not in dispute, and set out the 9 principles established by High Court decisions delivered between 1989 and 2006. It also noted that every case must be dealt with on its own facts, and reviewed recent cases involving stay applications in the context of an historical abuse claim. It noted that in Gorman v McKnight although the alleged abuser was dead the allegations were made while he was alive and he provided instructions to his lawyer. His lawyer was able to give evidence about the instructions and the existence of the sexual interactions between the plaintiff and the deceased was not seriously in issue. In WCB although the abuser was dead, the defendants' representatives had investigated the allegations and he had admitted his abuse to them. In XYZ the alleged abuser was alive at the time of the allegations and at the time of the stay application.

In contrast, in this case the first defendant cannot investigate the allegations and cannot obtain the alleged abuser’s response to the allegations. The first defendant cannot admit or deny the plaintiff's allegations. The alleged abuser cannot give evidence or give instructions to the first defendant and the continuation of the proceedings would be unfairly and unjustifiably oppressive because the first defendant cannot make a meaningful defence. The court observed that there was no fault on the plaintiff's part because he is entitled to bring the action at any time, but the effect of the timing of the action was to create unfairness to such a degree that the exceptional step should be taken of granting a permanent stay of proceedings in favour of the first defendant.

The court specifically rejected an argument by the first defendant that a stay should be granted as the abuser was not available for cross-examination on motive. This argument was rejected by the court on the basis that, consistent with authority, sexual gratification by the abuser is not an element of the definition of child abuse - there is no requirement to establish that the abuser had a motivation or intention to sexually abuse a victim.

The court granted a stay of the proceedings as the first defendant was not able to carry out meaningful investigations into the claim and maintain a meaningful defence in circumstances where they were alleged to be responsible for the actions of the cottage mother committed 58 years ago and the cottage mother had died before the allegations were made.

Implications for you

This case demonstrates that despite the removal of the limitation period for historical abuse claims, the courts may, in appropriate circumstances, exercise its discretion to stay proceedings where defendants cannot investigate and respond to allegations made against them and former staff. Particularly in circumstances where, effectively, defendants are denied the opportunity of seriously contesting a claim and raising a meaningful defence.

Updated 2 August 2022: The Supreme Court of Western Australia – Court of Appeal recently dismissed an appeal against the order for a permanent stay.

GMB v UnitingCare West [2020] WADC 165

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