Permanent stay of proceedings – an exceptional remedy

29 June 2022
Warning: This article contains details about sexual assault and abuse which may be upsetting for some readers. Reader discretion is advised.

The granting of a permanent stay of proceedings is an exceptional remedy appropriate only in exceptional circumstances. The Court of Appeal considers whether an absence of evidence in claims alleging abuse is sufficiently ‘exceptional’.

In Issue

  • Whether the trial judge erred in finding exceptional circumstances existed so as to permit the granting of a permanent stay of proceedings on the basis that a continuation of the proceedings would be unjustifiably oppressive and manifestly unfair to the defendant.

The background

The plaintiff sought damages for personal injury suffered by him in 1981 when he was in Year 6 at the Trinity Grammar Preparatory School. He alleged he was sexually abused by a particular clergyman who had since died.

The decision at trial

Her Honour accepted submissions from the defendant that an absence of records and witnesses meant it was impossible for a fair trial to be had.

The particular clergyman was deceased; as were the headmasters of the school who appointed him. Other key witnesses were also deceased or could not be contacted. There was an absence of school records relating to the plaintiff, the alleged perpetrator, and the school more generally, and there did not exist any prior reports of alleged sexual abuse by the particular clergyman. There was also a lack of insurance cover.

Her Honour found that despite extensive enquiries, the lack of evidence meant the school was unable to meaningfully deal with the claim. To continue proceedings would be unjustifiably oppressive and manifestly unfair to the defendant. Her Honour agreed that a permanent stay of proceedings can only be granted in exceptional circumstances, but she found that such circumstances existed, and a permanent stay of proceedings was granted.

The issues on appeal

The plaintiff sought leave to appeal the grant of a permanent stay of proceedings on grounds that the trial judge failed to evaluate whether evidence available to the defendant was sufficient to enable it to defend the claim. Somewhat unusually, the plaintiff contended sufficient evidence existed which, if accepted, would likely result in the case failing at first instance. As such, a fair trial was possible.

The Decision on appeal

The Court of Appeal upheld the ruling at first instance. It agreed that such exceptional circumstances existed that the granting of a permanent stay of proceedings was appropriate. It found the death of the alleged perpetrator, coupled with the death or absence of other important witnesses, and a lack of suspicion attaching to the alleged perpetrator throughout his lifetime meant this was not a claim the defendant could fairly defend.

The Court of Appeal did not accept submissions that the trial judge erred in her ruling because she failed to address the strength of the defendant’s defence.

The Court of Appeal noted that every case in which the exceptional remedy of a permanent stay is sought must turn on its own facts. However, it accepted that a measure of public importance attaches to cases such as these given the seriousness of the allegations.

Implications for you

A permanent stay of proceedings is only appropriate in exceptional circumstances. Whether such circumstances exist depends on the facts of each case, although the seriousness of claims of this nature may permit a more liberal application of a court’s discretion. In this case, a significant lack of evidence was deemed exceptional, and the decision to order a permanent stay was upheld.

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