Luke Geary, Partner at Mills Oakley and specialist in historical abuse cases discusses relevant factors to decisions around Permanent Stays, recent decisions and the considerations for plaintiffs.
Whilst child sexual abuse claims are no longer statute barred following legislative changes consistent with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, courts may consider permanent stays of proceedings in certain circumstances.
A permanent stay is an exceptional remedy and a defendant bears the onus of establishing that it should be granted.[1] It must be demonstrated that the effect of the proceedings is “seriously and unfairly burdensome, prejudicial or damaging”;[2] that their continuation would be manifestly unfair to a party[3] and their continuation would bring the administration of justice into disrepute amongst right-thinking people.[4]
Factors relevant to a decision to permanently stay proceedings involve balancing the right of victims to prosecute against the right of defendants to a fair trial. Relevant issues will be:
- any lack of evidence due to the passage of time;
- an assessment of prejudice for the defendant in mounting a defence;
- any prejudice due to the fault of defendant.
Recently, in GMB v UnitingCare West,[5] the Western Australian Court of Appeal found that the plaintiff, notwithstanding similar fact evidence of abuse by another survivor against the same alleged perpetrator, was unsuccessful and the original decision, being a permanent stay of the proceedings based on the first defendant being prejudiced in mounting a defence as a result of not being able to carry out any meaningful investigations into the claim, was upheld.
This is consistent with the attitude on the East coast of Australia where in the decision of The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 7 the New South Wales Court of Appeal recently refused to allow a plaintiff to run a case even though there was a plethora of evidence that the subject perpetrator had abused other people. The Court held that because this particular plaintiff had not brought the facts of her abuse to the attention of the defendant during the alleged offender’s lifetime, the defendant was entitled to a permanent stay on the basis that the defendant had no means of verifying the plaintiff’s allegations by virtue of putting them to the subject offender for his response.
Along with another recent decision on a stay application, by Justice Garling in the Supreme Court of New South Wales in Fields v Trustees of the Marist Brothers [2022] NSWSC 739, this signals a reinforcement by Courts across Australia that the death / incapacity of an alleged offender, and the unavailability of any other witnesses, is of primacy in a stay application, and even tendency evidence may not overcome that inability to obtain a fair trial.
Despite decisions denying permanent stays in favour of plaintiffs still trickling through, such as https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2022/313.html, we consider that institutional defendants to historic abuse allegations will now be emboldened to rely on and run stay applications more readily than they have previously. Plaintiffs who intend on litigating will need to seriously consider the availability of prospective witnesses for defendants in order to assess the likelihood of a stay application being run, and of any such application being successful. Plaintiffs may also consider that applications to the National Redress Scheme, or direct approaches to institutions through alternative dispute resolution processes may be more attractive propositions than litigation.
[1] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 529; [1992] HCA 34 per Mason CJ, Dawson, Toohey and McHugh JJ.
[2] Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 at 247 per Deane J; [1988] HCA 32.
[3] Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77 per Mason CJ, Deane and Dawson JJ’; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [6] per Gleeson CJ, Gummow, Hayne and Crennan JJ; “Batistatos”.
[4] Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77 per Mason CJ, Deane and Dawson JJ’; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [6] per Gleeson CJ, Gummow, Hayne and Crennan JJ; “Batistatos”.
[5] GMB v UnitingCare West [2022] WASCA 92.
Luke regularly acts for ASX200 listed companies, impact financiers, non-profits and religious institutions nationally. Luke also acts for individuals in high profile, social justice issues cases.
Luke has particular expertise assisting institutions in responding to claims of child sexual abuse under a restorative justice framework and in accordance with best practice principles identified by the Royal Commission into Institutional Responses to Child Sexual Abuse. In other instances, Luke acts on behalf of survivors in certain cases against government agencies and other institutions.
Additionally, Luke has been recognised as one of Australia’s leading lawyers representing victims of human trafficking and labour exploitation. Luke is a recognised expert in modern slavery law and assists large organisations in their compliance with this new regulatory regime.
Luke is often called upon by NFPs / charities at times of crisis to assist them to manage governance, operational and reputational issues which have arisen and which are critical to their survival, typically in Royal Commissions, Coronial Inquests and other major public Inquiries.
Luke is the founder and former managing partner of the unique social enterprise law firms ‘Salvos Legal’ and ‘Salvos Legal Humanitarian’, which are wholly owned by The Salvation Army. You may connect with Luke via LinkedIn
