The case of Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore NSWSC 1776 illustrates well the test for an application for permanent stay of proceedings in an historical sexual abuse claim.
The plaintiff commenced proceedings in 2018 alleging sexual abuse by a priest from a parish within the diocese in about 1950. The Trustees were sued in negligence and in vicarious liability.
A permanent stay was granted with the Court concluding that there was simply no means by which there could be a fair trial of the plaintiff’s claim given the alleged perpetrator died in 1957, more than 70 years had elapsed since the sexual abuse complained of was said to have occurred, and there was no material available in relation to the allegations.
In accordance with section 67 of the Civil Procedure Act 2005 (NSW) the ‘Court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.’
The defendant sought a permanent stay of proceedings given that the alleged perpetrator died in 1957. The Judge, Beech-Jones J noted that a permanent stay is an exceptional remedy and given that there is no limitation period in play, there is no obligation on a plaintiff to provide a property or satisfactory explanation for a delay in the commencement of proceedings. Rather the test is whether a fair trial is still possible.
A permanent stay was granted with the Court holding at :
“A consideration of the evidence summarised above reveals that with more than 70 years having elapsed since the sexual abuse complained of is said to have occurred there is simply no means by which there could be a fair trial of the plaintiff’s claim. There were only two potential eyewitnesses to the sexual assault, namely the plaintiff and Father Curran. Father Curran has been dead for over sixty years. There is nothing to suggest that during his lifetime he was confronted with the plaintiff’s allegations. There are no documents currently in existence bearing on the allegations and nor is there anything to suggest that there ever were any such documents. There is no suggestion that any complaint or report was made to anyone about the plaintiff being sexually abused in the immediate years that followed its occurrence. Leaving aside Father Donnelly, there is nothing to suggest that any third person, party or agency was ever given the opportunity to investigate the plaintiff’s allegations or any allegation of sexual abuse against Father Curran during his lifetime or even after he died. The position so far as a fair trial is concerned is much worse than that which was considered in Moubarak. The Trustees are “utterly in the dark about the allegations made” against Father Curran themselves and there does not exist any means by which the conduct of the trial could relieve the consequences of the effect of the passage of time (Moubarak at ). It follows that it is not possible for there to be a fair trial of the plaintiff’s allegations. The Trustees would not have any “real opportunity to participate in the hearing, or contest them, or … to admit liability on an informed basis” with the consequence that any hearing would be “o more than a formal enactment of the process of hearing and determining the plaintiff’s claim” (Newcastle City Council v Batistatos; Roads and Traffic Authority NSW v Batistatos NSWCA 20 at ).”
Despite the decision in Ward, the plaintiff may be eligible to bring a claim under the ‘National Redress Scheme’. In the Court’s concluding remarks, the Court stated ‘It is not part of this Court’s function to address the plaintiff’s eligibility for compensation under that scheme. It is, however, appropriate to record that nothing in this judgment should be taken as reflecting adversely on her credibility, including the credibility of the account of the sexual abuse she stated she suffered.’
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