Willmot v State of Queensland (B65/2023)

The Supreme Court heard an application filed by the State seeking a permanent stay of proceedings for alleged child sexual abuse while in foster care and Cherbourg in the late 1950s.

On 22 August 2022 Chief Justice Bowskill held this is a case in that exceptional category where a permanent stay is warranted. This conclusion is reached having regard to the consequences of the passage of time, and does not involve any criticism of the plaintiff, in circumstances where there is no limitation period which applies to a claim of the kind she seeks to bring. The consequence, that this decision results in the plaintiff not being able to pursue her claim, weighs heavily. However, the time that has passed, since the events in question, and the consequences of that passage of time for the availability of witnesses and evidence, is such that a fair trial is not possible and, accordingly, the exceptional step of granting a permanent stay of the proceedings is warranted.

In May 2023 the Court of Appeal upheld the permanent stay of proceedings granted by Chief Justice Bowskill.

Leave to appeal to the High Court was granted and was heard by the High Court on 7 May 2024.

The main issue before the High Court was whether this case was an exceptional case to grant a permanent stay, would there be a fair trial and disentangling causation.

• The Court’s power to stay a proceeding exists to ensure a fair trial and to prevent a proceeding that would be an abuse of process. It is not enough that a trial might be conducted fairly depending on the rulings that might be made. The State discharged the “heavy onus” of demonstrating that the trial would be fundamentally unfair. The learned primary judge was correct in finding that there would be nothing that a trial judge could do to overcome that unfairness.
• Causation - the State as Defendant bears the onus of demonstrating with a degree of precision that the non-compensable events (before index events, during and after) were causative of or contributed to the plaintiff’s injury. But this requires the State as the Defendant to raise evidence to retrospectively assess whether and to what extent each of those events that happened more than 60 years ago in some instances contributed to her injury now and had contributed to her injury in the period in respect of which she makes her claim.
• Nothing a trial judge can do to cure the unfairness to the State as Defendant brought about by the circumstances of this case.

The decision is yet to be handed down.

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