Willmot v Queensland [2024] HCA 42

Executive overview

• The High Court has allowed, in part, an Appeal overturning the granting of a permanent stay with respect to claims arising from allegations of sexual abuse between 1957 and 1967.
• In allowing the Appeal in part, the High Court has affirmed its findings in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore ¹ that a permanent stay of proceedings should only be granted in the most exceptional of cases and that the passage of time cannot be solely relied upon to establish that a trial will be unfair.

Background

The plaintiff, Ms Willmot, commenced proceedings against the State of Queensland arising from a number of allegations that she had sustained serious physical and sexual abuse: physical and sexual abuse perpetrated by her foster parents from 1957 to 1959; physical abuse perpetrated by the supervisor of the Cherbourg Girls’ Dormitory between 1959 and 1966; sexual abuse perpetrated by an uncle in 1960 (“NW”) and sexual abuse perpetrated by an unidentified relative in 1967. Ms Willmot was able to bring these proceedings due to the removal of the limitation period for personal injury pursuant to the enactment of s11A of the Limitation of Action Act 1974 (“LAA”).

It was not in dispute that, during the above periods, Ms Willmot was under State care through the operation of the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) and that the State of Queensland owed the claimant a duty of care that was non-delegable. The State of Queensland pleaded that it could not determine the truth or otherwise of the allegations due to a lack of ability to investigate the alleged assaults. The State also denied that, if the assaults had occurred, the State had breached its duty of care to Ms Willmot.

In the Queensland Supreme Court (affirmed in the Queensland Court of Appeal) the State successfully argued that a fair trial of the matters the subject of the proceedings could not occur and that a permanent stay of proceedings was warranted.

The High Court overturned this decision, relying on its previous findings in GLJ that section 11A of the LAA created a “new reality” that must accept that impoverishment of evidence (loss of records, documents, witnesses) would now be encountered and cannot be said to constitute an unfair trial on their own. It had to be established that the passage of time had caused the unfairness to the party seeking a stay and that the party had no means to take instructions to defend the allegations.

The High Court held:

• The presence of an eyewitness, RS, to the alleged sexual assaults of the foster carer meant that the State could obtain some instructions even though both of the foster parents were long deceased². There was otherwise unlikely to have been documentary evidence going to the matters in issue in any event given the nature of the assaults.
• Similarly, the presence of parties who attended the Girls’ Dormitory and could give evidence as to the conduct of the supervisor meant that the trial could continue, although the alleged perpetrator and other staff members were deceased.
• The fact that Ms Willmot’s uncle NW had been discovered to be living meant the State could take instruction from him, or attempt to, and had not established the trial would be unfair.
• The allegations against the unidentified relative in 1967 were unspecified and would be almost impossible to cross-examine Ms Willmot on, such that this aspect of the proceedings should be stayed.

The key takeaways from the High Court’s decision are that there is a very high bar for determining that the lapse of time has had a burdensome effect on a defendant which is so serious that a fair trial is not possible. That test will not be reliant on whether an alleged perpetrator is alive, whether any documentary evidence exists or whether a witness could be considered independent. Rather, the test will be whether a defendant has any means by which it can investigate the matters in issue (including through a broad class of witnesses), take instruction from any party or have a means by which to meaningfully cross-examine a plaintiff on the matters alleged in the claim.

^{1 (2023) 97 ALJR 857.
2 It was noted that RS had also brought a claim against the State of Queensland for sexual assaults perpetrated by the same foster parent.}

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