Significant decision in historical abuse case – permanent stay of proceedings

14 October 2022
Warning: This article contains details about sexual assault which may be upsetting for some readers. Reader discretion is advised.

The Supreme Court of Queensland granted a permanent stay of proceedings in relation to a claim for historic sexual abuse.

In Issue

  • The Supreme Court was required to consider whether it was entitled to use its inherent power to permanently stay a claim advanced in relation to alleged historical sexual abuse.

The background

The plaintiff had commenced proceedings against the State of Queensland, alleging that she suffered from a psychiatric injury caused by sexual and physical abuse that she had sustained between 1957 – 1959, 1959 and 1960 – 1967, whilst she was a ward of the State.

The State defended the claim on the basis that it was unable to ascertain the truth of the plaintiff’s allegations, in view of the passage of time between the alleged incidents and the commencement of proceedings.

The decision at trial

The Limitations of Actions Act (1974) (QLD) provides that there is no limitation period for an action for damages relating to personal injury due to the abuse of a person when they were a child (section 11A(1)). The Supreme Court however retains inherent power to summarily dismiss or stay proceedings in the event that a defendant is precluded from a fair trial.

Here, Chief Justice Bowskill noted that the State was unable to investigate and respond to the critical facts of the plaintiff’s claim, noting that many of the alleged perpetrators and other involved witnesses, were deceased.

Implications for you

The decision demonstrates that, despite the removal of limitation periods for child sexual abuse claims, it remains open for courts to exercise their inherent powers, where failure to do so would result in procedural unfairness. Here, the passage of time, the death of several key witnesses and the absence of documentary evidence were relevant factors that persuaded the court that the State would not have a fair trial and the permanent stay of proceedings was accordingly granted.

Updated on 19 May 2023: On 16 May 2023, the Qld Court of Appeal dismissed an appeal because the consequences of the passage of time for the availability of witnesses and evidence meant that a fair trial was not possible. In those circumstances the exceptional step of granting a permanent stay of the proceedings was warranted. The fact that some witnesses were still alive did not alter the Court of Appeal’s view as those witnesses would have been asked about events which allegedly occurred approximately 6 decades ago. The Court of Appeal determined that it would be insurmountably difficult to extricate particular events from the allegations of what happened at particular locations, and from the broader allegations of what the plaintiff said she endured whilst at the girls’ dormitory, let alone the other subsequent life events referred to in medical evidence, in terms of causation.

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