Procedural fairness and capacity in historical claims: Court grants permanent stay

08 December 2020
Trigger warning: This article contains details about child sexual abuse which may be upsetting for some readers. Reader discretion is advised.

The plaintiff claimed damages for personal injuries sustained as a result of historical sexual abuse by the first defendant when the plaintiff was a child. By the time the claim was brought, the first defendant had advanced dementia, and had been in a residential aged care facility for some time.

The defendants applied for a permanent stay on the basis that the defendant is incapable of providing instructions or giving evidence due to his cognitive impairment. The Court stayed the proceedings on the basis that a fair trial was impossible having regard to the first defendant’s inability to respond to any of the allegations made against him.

In Issue

The defendants applied for a permanent stay of the claim, in which it was alleged the first defendant caused his grandson (the plaintiff) to suffer personal injuries by sexually abusing him. The application turned on whether the proceeding should be stayed because the first defendant was incapable of providing instructions and giving evidence and, consequently, a fair trial was not possible.

The background

The plaintiff brought a claim for damages for personal injuries sustained as a result of sexual abuse committed against him by the first defendant in the 1990s. The plaintiff also sought damages from his mother, the second defendant, on the basis that she placed him in the first defendant’s care when she knew, or ought reasonably to have known, about the abuse.

The first defendant is 94 years old. Since 2009, the first defendant has been suffering from degenerative dementia. He has lacked capacity since at least June 2019 and has limited short and long-term memory. The plaintiff accepted that because of his dementia, the first defendant was unable to provide instructions in relation to the claim.

The first defendant was convicted of child sex offences in 2003, relating to offences committed while he was a schoolteacher in the 1970s.

The legislation

Despite the alleged abuse occurring around 25 years ago, the plaintiff’s claim was not ‘out of time’ as s 11A of the Limitation of Actions Act 1974 (Qld) allows claims involving child abuse to be brought at any time.

While the amendments to the Limitation of Actions Act allow historical sexual abuse claims to proceed long after the alleged abuse occurred, subsection (5) expressly states:

This section does not limit a court’s power to summarily dismiss or permanently stay proceedings if the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.

Relevant principles

Martin J relied on the decision in Moubarak1, in which the NSW Court of Appeal found that if a defendant in a civil claim would not meet the test of ‘fit for trial’ in a criminal case, it would ‘offend common sense simultaneously to maintain that the defendant could secure a fair civil trial in relation to identical factual allegations’.

His Honour stated that many of the features which justified granting a stay in Moubarak, were present in this case, including, in summary:

  • The first defendant was never confronted by the allegations, so there is no record of his response;
  • The first defendant had advanced dementia before any proceedings, including any pre-litigated proceedings, were commenced;
  • No complaint was made to the police, so there is no police statement which might have been obtained had a complaint been made at an earlier time;
  • There is no reliable evidence of any persons who could give direct evidence of the alleged assaults;
  • There is no suggestion that there is any documentary evidence which might be able to be used with respect to the alleged abuse;
  • It is agreed that the first defendant is unable to give instructions in relation to the allegations and, because of his mental condition, the first defendant would be unable to give evidence or provide instructions during the course of any trial.

The plaintiff’s arguments

The plaintiff’s position was that similar fact evidence (i.e. the 2003 convictions) could be led to establish the probability that the abuse occurred and that a fair trial would be ensured through the testing of the plaintiff and second defendant’s evidence in cross-examination.


In addition to the application of Moubarak (as above), his Honour found:

  • although similar fact evidence would ordinarily be admissible in civil proceedings, the admission of evidence about which the first defendant can give no instructions would only render the trial more unfair;
  • the plaintiff’s evidence could not be properly or sensibly tested in cross-examination in the absence of instructions from the first defendant about the matters on which to cross-examine the plaintiff;
  • the second defendant’s evidence cannot be used to advance a case against the first defendant, as the case against the second defendant relies on a finding that the abuse occurred – an unfair trial cannot be made fair on the basis that something might emerge from cross-examination of another party;
  • the first defendant’s medical condition would render a trial of this action so unfair to him as to require that the action be stayed.

His Honour permanently stayed the proceedings and ordered that the plaintiff pay the defendants' costs of the application.

Implications for you

In a broad sense, the decision affirms the importance of a defendant’s capacity to provide instructions and respond to allegations made against them. These principles, which underpin basic notions of procedural fairness, must be protected where the allegations are historical and where there is limited (or no) objective evidence of the events subject to the claim.

The decision also demonstrates the types of cases that will enliven s 11A(5). The principles in Moubarak and comparison to criminal law tests of ‘fairness’ demonstrates the threshold that is to be met where a defendant applies for a stay.

The number of personal injury claims relating to historical sexual abuse continues to rise following the Royal Commission2 and abolition of statutory limitation periods. We have seen a sharp rise in claims against government departments, schools and institutions. While it may be unlikely that a claim against an institution (based on vicarious or direct liability) would be stayed on the basis of unfairness, the decision is relevant to whether contribution should be sought from alleged perpetrators (who are often elderly). It may also have relevance to cases where the passing of time is significant and there is extremely limited evidence to support, or refute, the allegations.

Ultimately, this case highlights the difficulties and sensitivities associated with historical sexual abuse claims and the evidentiary challenges faced by plaintiffs and defendants.

Chalmers v Leslie & Anor [2020] QSC 343

1Royal Commission into Institutional Responses to Child Sexual Abuse
Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218.

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