High Court decisions provide guidance on permanent stays in historical child sex abuse cases

The High Court of Australia's judgments in RC v The Salvation Army (Western Australia) Property Trust (RC v The Salvation Army) and Willmot v The State of Queensland represent a significant development in the approach to historical child sexual abuse litigation in Australia.

By reaffirming the heavy burden on defendants to demonstrate specific prejudice when seeking permanent stays, the Court underscored the need to balance the rights of survivors seeking access to justice with the challenges inherent in historical claims.

Facts of RC v The Salvation Army

• RC initiated proceedings against The Salvation Army (TSA), seeking compensation for loss and damage suffered as a result of alleged sexual abuse by one of TSA's officers, Lieutenant Frank Swift during RC’s stay at the Nedlands Boys’ Home between 1959 and 1960.
• RC claimed to have reported the abuse to Major Watson, the officer then in charge of the boy’s home.  Notably both Lt Swift and Major Watson had passed away before RC brought his claim.
• RC first reported the abuse to the police in 2014 and formally notified TSA of his claim in 2018.  Later that year, after the removal of the limitation period for child sexual abuse claims via the introduction of 6A of the Limitation Act 2005 (WA), RC issued proceedings against TSA.
• At first instance, TSA applied and was granted a permanent stay of proceedings on the basis a fair trial was impossible due to the missing key witnesses, lack of evidentiary documents and the elapsed passage of time.
• RC appealed to the Supreme Court of Western Australia Court of Appeal, which upheld the permanent stay and emphasised that TSA was unable to meaningfully defend the action due to missing key witnesses and documentation.
• RC appealed against the Court of Appeal's decision to the High Court of Australia.

Facts of Willmot v Queensland

• Ms Willmot initiated proceedings against the State of Queensland  under section 11A(1) of the Limitation of Actions Act 1974 (Qld) alleging negligence resulting in psychiatric injury due to physical and sexual abuse perpetrated by several caregivers in whose care she had been placed.
• In particular, Ms Willmot alleged physical and sexual abuse by her foster parents, Mr and Mrs Demlin, and physical abuse by Maude Phillips, who was supervisor of the Cherbourg Girls’ Dormitory when Ms Willmot had been placed there.  Ms Willmot also alleged she was sexually abused by two relatives, NW and Uncle Pickering during her approved visits to her grandmother’s house.
• At first instance, a permanent stay application was sought and granted, as it was found the case met the necessary ‘exceptional circumstances’ threshold.
• Ms Willmot appealed to the Supreme Court of Queensland Court of Appeal, which upheld the permanent stay, highlighting the State's inability to cross-examine or obtain instructions from the alleged perpetrators would lead to an unfair trial.  
• Ms Willmot appealed the decision of the Court of Appeal to the High Court of Australia.

Issues

Both cases questioned whether a fair trial was possible given the significant time elapsed since the alleged abuse, the loss of key witnesses, and the absence of available evidence.

RC v The Salvation Army

Respondents Submissions

TSA submitted it was impossible to have a fair trial due to the loss of key witnesses, the lack of evidentiary documents, and the length of time lapse since the abuse.  

Held:

• Special leave to appeal was granted due to the significant legal questions surrounding the interactions between permanent stay principles and the removal of the limitation period for child sexual abuse claims.
• The High Court rejected the Court of Appeal’s decision and allowed the appeal, setting aside the permanent stay.
• The High Court unanimously held TSA failed to meet the high burden of proof required, and that TSA had sufficient information to mount a meaningful defence, noting they had missed several avenues for investigation.
• The High Court noted, if Lt. Swift was alive, Lt. Swift would likely have only denied the allegations.  Similarly, the Justices held Major Watson's death in 1968 did not create prejudice attributable to the delay in proceedings, as that death occurred within the original limitation period.
• The High Court highlighted the presence of other potential witnesses, including other alleged victims of Lt. Swift, and noted TSA’s failure to gather information from them.  The Justices also pointed to Commissioner Tidd's lengthy Statement to the Royal Commission into Institutional Responses to Child Sexual Abuse and admission of systemic failings as evidence to counter the claim of prejudice from lack of documentation.

Diverging Perspectives Among the Justices

• Justice Gleeson partially dissented, agreeing with the overall outcome, however, deciding the vicarious liability claim should be permanently stayed, due to TSA's ability to investigate and defend the claim being hindered by the evidentiary and time obstacles.
• Justice Steward concurred with the majority but placed emphasis on TSA’s lack of effort in gathering evidence, stressing the fact there was no evidence TSA approached any of the 10 men alleging abuse by Lt. Swift or Lt. Swift's wife.  Justice Steward also criticised the idea that, if alive, Lt. Swift would merely have issued a “bare denial”, noting this to be speculative and unsupported by evidence.

Willmot v Queensland

Respondent's Submissions:

The State of Queensland made similar submissions to TSA, being that the trial would be unfair due to loss of witnesses, evidence and lapse of time.  However, the State further argued the lack of evidence created issues in separating the effects of the abuse from other ‘life stressors’.

Held:

• The High Court rejected the Court of Appeal’s decision and allowed the appeal, setting aside the permanent stay for all allegations of abuse save for the physical abuse by Mr and Mrs Demlin and the sexual abuse by Uncle Pickering.
• The High Court agreed the physical abuse by the Demlins and the sexual abuse by Uncle Pickering should be permanently stayed, the Justices noting the lack of details and witnesses prejudice Queensland's ability to investigate and substantiate the abuse to the extent a fair trial would be impossible.
• The High Court held the existence of witnesses to the sexual abuse by Mr Demlin and NW and the physical abuse by Ms Phillips gave the Respondent the opportunity to investigate and meaningfully defend the claims at trial.  Whilst the Justices noted the potential difficulties of assessing the extent of the abuse, they did not believe those difficulties created sufficient prejudice.
• The High Court held the mere fact there is no apparent pathway for the State to challenge the evidence does not support the finding of an unfair trial, and that the existence of documented evidence and witness Affidavits supported the assertion of physical abuse at the dormitory.

Diverging Perspectives Among the Justices

• Justice Edelman dissented and found the physical abuse by Mr Demlin should not have been stayed, suggesting the vagueness of the pleadings may instead be grounds for a strike out application.
• Justice Steward also dissented and found the sexual abuse allegations against Mr Demlin should be stayed because the unreliability of the evidence placed Queensland in a prejudicial position to the extent they were ‘utterly in the dark’.

Key Learnings from Both Cases

Burden of Proof:

The High Court has reaffirmed the heavy onus on Defendants to demonstrate a fair trial was impossible due to the passage of time, stating it requires a clear causal link between the delay and the loss of crucial evidence.

Permanent Stay of Proceedings:

The High Court underscored the high threshold for granting a permanent stay, stressing it is only granted as a ‘last resort’ when the passage of time causes such significant prejudice that a fair trial is rendered impossible, particularly in historical child sexual abuse cases given the limitation period no longer applies.

Prejudice Due to Passage of Time:

While the passage of time is a relevant factor when determining prejudice, the respondent must demonstrate substantial prejudice that would prevent a fair trial.

Vicarious Liability:

In RC v Salvation Army (Western Australia) the High Court also discussed the application of vicarious liability principles, noting the absence of an employment contract between the Salvation Army and Lt. Swift was not necessarily fatal to the vicarious liability claim and that a broader analysis of the relationship was required.

Authors

Cameron Roberts | Partner | +61 3 9641 8840 | croberts@tglaw.com.au

Hannah Sowdon | Partner | +61 3 9641 8840 | hsowdon@tglaw.com.au

Kayla Costanzo | Law Clerk

Francesco Mercadante | Law Clerk

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