The High Court of Australia has allowed one appeal and partially allowed a second by plaintiffs alleging sexual abuse in care as children. Of particular relevance is the decision of Wilmot v State of Queensland, an appeal against a decision by the Supreme Court of Queensland to permanently stay an abuse claim brought by a former ‘state child’ comprising four allegations of sexual and physical abuse while she was in the care of the State. This article outlines the reasons the High Court permitted some aspects of the plaintiff’s claim to proceed to trial and not others.
A New Normal
Echoing the Court’s previous decision in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore, the plurality of Gageler CJ and Gordon, Jagot and Beech-Jones JJ confirmed that the removal of limitation periods for plaintiffs who suffered sex abuse as a child created a ‘radically new context’ within which the Courts must operate.
In this case, the plaintiff’s claims all concerned abuse that she alleged had happened over 50 years ago. The first allegation was that she was subjected to frequent sexual abuse and beatings by foster carers with whom the state had placed her before she reached the age of five years old. The second allegation was that she was subjected to beatings and severe floggings ‘for minor infractions of the rules’ while placed at a Girl’s Dormitory operated by the state. The third allegation was that she was sexually assaulted by an uncle while visiting her grandmother, having been given permission to leave the dormitory for that reason. The fourth concerned a further allegation of a similar nature involving a different perpetrator and which occurred at a later time.
The Court affirmed that permanent stays are a ‘last resort’ to be ordered in ‘exceptional’ cases. However, since the removal of limitation periods, cases commenced many years after the alleged abuse occurred are no longer exceptional. Sexual abuse is ‘typically perpetrated in secret’, there are often no witnesses and it may not be documented. Missing, dead or unknown perpetrators are not unusual situations for a Court to deal with.
"Impoverishment of evidence is now to be encountered and expected"
It is not considered that the plaintiff is ‘responsible for any consequences adverse to their interests’ arising from any delay in commencing proceedings. An applicant for a permanent stay must demonstrate adverse consequences that go beyond what should simply be expected in an action commenced so long after the events took place.
Ensuring Fair Trials
The Court will stay a proceeding if there cannot be a fair trial, but the foregoing circumstances in and of themselves will not mean a trail cannot be fair. The plurality offered five techniques that judges may apply to address the kinds of difficulty that may arise because a lengthy time has passed between the relevant incident and the institution of proceedings:
- varying the degree of satisfaction required under the civil standard of proof according to the gravity of the fact to be proved (often referred to as the Briginshaw standard);
- weighing evidence in light of the party’s power to produce it and the other party’s power to contradict it;
- refusing to accept uncontradicted evidence if it would not be reasonable in the context of other proven facts;
- remaining mindful that human memory is fallible, and the more time passes, the more fallible it gets; and
- carefully scrutinising all available evidence concerning an alleged interaction with a deceased person.
Edelman J found that fairness, unlike fashion sense, is not informed by community attitudes that ‘fade in and out’, but rather by the circumstances of the case. Proceedings which involve ‘a high degree of substantive or procedural prejudice to a party by circumstances of injustice’ are unfair and cannot be made fair by tipping the balance in favour of another party. While Parliament could hypothetically pass legislation requiring trials to proceed though they were unfair, it has not done so in this case. The Court can therefore refuse to allow a case to proceed to an unfair trial.
Unfairness, in cases of delay, may occur if the party seeking a stay can establish that the plaintiff’s delay in bringing proceedings caused that party to suffer extreme forensic disadvantage. Forensic difficulty that can be managed by the Court will not cause a trial to be ‘manifestly unfair’.
The Decision in this Case
The Court decided that some of the allegations made by the plaintiff could be fairly tried and some could not. The evidence provided by the State of Queensland about the prejudice it faced in respect of each set of allegations was carefully considered.
The Court concluded that there could be a fair trial of the claims of sexual abuse by the plaintiff’s foster parents. The plaintiff was able to provide a reasonably clear description of her recollection, and though there was evidence she might not have recalled those events herself until prompted by her sister in 2016, a Court is able to manage those issues by applying appropriate weight to the evidence and deciding whether it should be accepted notwithstanding that it is uncontradicted. The likelihood that the abuse had never been documented made it unlikely that the passage of time had caused the loss of records. It was unlikely that the state was ‘deprived of much more than a bare denial’ by the foster parent.
On the other hand, the permanent stay of the allegations of physical abuse by the foster parents was not lifted. The plaintiff alleged that she was regularly beaten ‘for minor infractions of the rules’, but was not able to give any specifics about the incidents, their locations, other persons present, the nature of the beatings or whether they were perpetrated by one or both of the alleged foster parents. There was no way to respond to or contradict the allegations, so the stay was affirmed.
The Court permitted the plaintiff to progress her allegations of abuse at the state-run dormitory to trial. The plaintiff’s descriptions of the incidents were sufficiently clear and detailed and had been the subject of a redress claim in 2009 that the State had been able to apply to its classification categories. While the matron of the dormitory died in 1982, other witnesses had provided corroborating evidence and the State had documents that were made at the time describing the matron’s use of corporal punishment. The State was unable to satisfy the Court that the passage of time had caused it extreme disadvantage that could not be managed.
The allegations against the plaintiff’s uncles were each treated differently. The first allegation was permitted to continue to trial because, though the plaintiff’s grandmother was no longer alive, the alleged perpetrator was. Further, there was evidence that the State had contacted him the day before the hearing of the stay application and he indicated his memory was ‘pretty good’. The second allegation lacked key details about the context of the alleged incident which made it impossible to investigate and the facts upon which it could cross-examine the plaintiff were unremarkable. Absent any other available information, the passage of time made a fair trial impossible.
Significance for Future Cases
This case confirms that the mere effects of the passage of time are not of themselves sufficient to establish that an ‘exceptional case’ exists for the permanent stay of a claim made by plaintiff for harm suffered by reason of institutional abuse. An applicant must be able to satisfy the Court that the passage of time has caused it extreme disadvantage investigating and responding to the case. Put another way, the applicant will need to produce evidence and an explanation establishing why the Court will not be able to manage the disadvantages it faces by reference to the general principles it ordinarily applies to ensure a trial is fairly had.
The fact that a stay may not be granted does not guarantee success at trial. The High Court has alluded to the possibility that the effects time has on memory may mean that evidence is not accepted even if it is uncontradicted. Further, while ‘there is no rule of law that there can be no claim without corroboration’, a trial judge is still expected to take care before accepting uncorroborated evidence.
This decision reinforces that permanent stays should be considered a last resort and, other than in genuinely exceptional cases, the Court will apply known principles to address any unfairness at trial.
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