Landmark decision sees permanent stay of proceedings in historical sexual abuse case

Whilst the grant of a permanent stay of proceedings remains exceptional, the Supreme Court of Queensland has followed in the footsteps of New South Wales, Victoria and Western Australia, and granted a permanent stay of proceedings in a historical sexual abuse case, in Willmot v State of Queensland [2022] QSC 167.

The Law

Section 11A(1) of the Limitation of Actions Act 1974 (Qld) provides that an action for damages relating to personal injury resulting from the abuse of a person when they were a child may be brought at any time and is not subject to a limitation period.  The removal of the limitation period resulted from recommendations following the Royal Commission into Institutional Responses to Child Sexual Abuse.

Following the removal of limitation periods for historical sexual abuse claims, the Queensland Supreme Court retained an inherent 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”.¹

Recent caselaw² indicates that where a permanent stay has been granted, it is due to the lengthy passage of time making a fair adjudication of the serious allegations impossible.

Background

The Plaintiff, Joanne Willmot, commenced proceedings against the State of Queensland seeking damages for psychiatric injury she suffered because of alleged sexual and serious physical abuse whist a ward of the State.

The Plaintiff alleged three separate periods of abuse:

1. Between 1957 to 1959, whilst placed in the care of foster parents Jack and Tottie Demlin, the Plaintiff alleges Mr Demlin sexually abused her.
2. In or about 1959, whilst residing in a girls’ dormitory in an Aboriginal Settlement at Cherbourg, Queensland, the Plaintiff alleges she was subjected to serious physical abuse by dormitory supervisor, Maude Phillips.
3. In 1960 and 1967, the Plaintiff alleges that whilst she was visiting her grandmother, she was subjected to two separate instances of sexual abuse perpetrated by her Uncle NW (a pseudonym), and her cousin or great uncle Pickering.

Issues before the Court

The Plaintiff claimed that the State was negligent in failing to properly monitor and supervise her, and those into whose care she was placed, including the Demlins, her carers at Cherbourg and her grandmother. She did not allege the State was vicariously liable for any of the alleged abuse.

The State did not dispute that it owed a duty to take reasonable care to avoid foreseeable risk of injury to the Plaintiff while she was a ward of the State. However, it did dispute the content of that duty and the knowledge it allegedly had of the abuse. The State argued that due to the passage of time of more than 60 years, it could not ascertain the truth or falsity of the Plaintiff’s allegations and it was prejudiced in defending the claim, such that there could not be a fair trial.

The State had also undertaken investigations, which revealed:

1. There was no probative evidence of any abuse of the Plaintiff;
2. There was no probative evidence of any complaints made about the Demlins;
3. There were some documents evidencing complaints about Phillips who ran the Cherbourg girls’ dormitory, but they were investigated and determined to be unfounded; and
4. Many of the alleged perpetrators and other involved persons were deceased.

The Plaintiff put substantial emphasis on the availability of evidence from RS (a pseudonym), who was a foster child who resided with the Demlins at the same time as the Plaintiff. RS had also brought a claim against the State for alleged sexual abuse by Mr Demlin. RS provided an affidavit claiming that she witnessed the Plaintiff being sexually abused by Mr Demlin, and the Plaintiff asserted the availability of this evidence results in there being no unfairness, because RS can be cross-examined at trial. Interestingly, the Plaintiff had no recollection of the alleged abuse by Mr Demlin until 2016, when RS told her she had been abused.

The Plaintiff also argued that the State had the ability to call evidence from other residents of the dormitory and other supervisors, that there was a public interest factor in allowing the present proceedings to continue, and the fact that NW, whose whereabouts was discovered late, was alive was evidence the State cannot say it had undertaken all possible enquiries.

Findings of the Supreme Court

Whether the alleged abuse occurred was naturally a critical and threshold issue. The inability of the State to obtain instructions from any of the alleged perpetrators (but for NW) resulted in the State having “… no means for investigating the foundational facts underpinning the alleged wrongful acts which are critical to establishing liability of the part of the State.”³

Her Honour, Justice Bowskill, accepted it may have been possible, based on documentary records and evidence of others who lived or worked at Cherbourg while the Plaintiff resided there, for the State to respond to the allegations concerning the alleged “system”, or lack of one, for monitoring and supervising children. However, this did not alleviate the overarching prejudice suffered by the State, which was responding to the “critical facts” of the Plaintiff’s case as to whether the abuse did in fact occur.

Her Honour was not convinced the evidence raised by the Plaintiff overcame this unfairness, finding:

1. The fact one of the alleged perpetrators (NW) was still alive did not overcome the unfairness because it would be “insurmountably difficult” to disentangle this one event from the other alleged abuse concerning Mr Demlin, Phillips, and Pickering (in terms of causation), let alone the Plaintiff’s relevant subsequent life events; and
2. While there is, unusually, a witness to the alleged abuse at the hands of Mr Demlin, RS, this witness only served to highlight the potential unfairness and would “only render the trial more unfair”. This was because the State was also deprived of the opportunity to obtain instructions from Mr Demlin in response to the allegations made by RS. The ability to cross-examine the Plaintiff and RS did not cure this impediment, but rather rendered any trial even more unfair as the State would be “cross-examining in the dark”.⁴

Her Honour considered that the trial would be heavily dependent on oral evidence, where the quality of memory and recollection would be paramount, and given the passage of time, any such trial would be fundamentally unfair.

Against this background, Her Honour granted a permanent stay of proceedings.

Implications

This decision follows several recent cases from other jurisdictions where defendants were successful in obtaining permanent stays of proceedings where the circumstances rendered a fair trial impossible.

Willmot serves as a timely reminder that courts can, and will, exercise their power to permanently stay proceedings where the passage of time, the death of the alleged perpetrator or witnesses, or the absence of documentary evidence of the relevant complaints, create compelling circumstances to award a permanent stay.

Of course, each case will turn on its own facts, however, Willmot provides useful guidance around the types of circumstances which may impede a defendant’s ability to defend a claim for historical sexual abuse.

Appeal

At the time of publishing, the decision was the subject of an appeal.

^{1 Limitation of Actions Act 1974, s 11A(5).
2 See The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78; Fields v Trustees of the Marist Brothers [2022] NSWSC 739; Smith v The Council of Trinity Grammar School [2022] NSWCA 93; GMB v UnitingCare West [2022] WASCA 92 and Phillips v Stanzer [2022] VSC 355.
3 Willmot v State of Queensland [2022] QSC 167, [77].
4 Willmot v State of Queensland [2022] QSC 167, [72], [78], [80].}

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