In what circumstances can a defendant in a historical abuse claim apply for a stay of legal proceedings?

Sep 5, 2022 | Publication | 0 comments

Generally, a defendant in a historical abuse claim can apply for a stay of proceedings on the grounds of unfairness, where the defendants cannot investigate and respond to allegations made against them.

This is decided on a case by case basis and the onus is on the defendant.

The significance of an application for a stay of proceedings has increased in importance in historical sexual abuse claims due to the removal of limitation periods for claims of this nature.

The recent case of Fields v Trustees of the Marist Brothers [2022] NSWSC 739 considered the above issues in a school setting.

The plaintiff commenced proceedings against the defendant, the Trustees of the Marist Brothers in July 2019, claiming damages for sexual abuse which he initially alleged occurred in 1966, and on one occasion in 1967, whilst he was a student at St Joseph’s School.

The defendant sought orders that that the allegations raised by the plaintiff of sexual abuse by Brother Celcus (who had died in 2000), be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005. The application was successful and the order was granted.

Garling J stated at [99] – [100]:

Also, the nature of the evidence of the plaintiff, namely, his unassisted recollection or memory from when he was 11 years old is almost inevitably, as a consequence of the passage of time, likely to be impoverished. And there are areas of legitimate dispute in his evidence as I have identified in [51]-[53] above that cannot now be tested by reference to any contemporaneous material.

In the absence of any witness to the sexual assault relied upon by the plaintiff, and because Brother Celcus is now dead, the defendant is quite unable to test, or challenge in any meaningful way, these fundamental allegations of fact upon which the plaintiff’s claim depends.

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