The Queensland Court of Appeal has dismissed an appeal to set aside a permanent stay by Joanne Willmot (the Appellant) who alleges she sustained a psychiatric injury as a result of sexual and physical abuse over 50 years ago while in the care of the State of Queensland.
Background
The Appellant sued the State of Queensland (State) claiming damages for psychiatric injury suffered as a result of sexual and serious physical abuse whilst a State child. The proceedings were not statute barred by virtue of section 11A(1) of the Limitation of Actions Act 1974 (Qld) (LAA), which provides that an action for damages relating to personal injury resulting from the abuse of a person when they were a child is not subject to a limitation period. The Appellant alleged three separate periods of abuse:
- From 1957 to 1959 while in the care of Jack and Tottie Demlin (foster parents) with her two sisters and brother (including RS), where she alleges Mr Demlin sexually abused her;
- in or about 1959 while living at a girls’ dormitory in Cherbourg, where she alleges being subjected to serious physical abuse by Maude Phillips, a dormitory supervisor; and
- between 1960 and 1967 while visiting her grandmother. These instances of sexual abuse were allegedly perpetrated by an uncle (NW) and cousin/great uncle.
The Appellant’s claim was brought against the State on the basis of direct liability for negligence. The Appellant alleged the State failed to properly monitor and supervise the Appellant, and those into whose care she was placed by the State. There were no allegations regarding vicarious liability.
State’s stay application
The State relied on the fact that the persons alleged to have perpetrated the abuse (with the exception of NW who was now aged 78), or persons who otherwise might know something about the matters alleged by the Appellant, such as staff at the dormitory, or who might give instructions regarding the monitoring, supervision and reporting procedures which were in place, were deceased. In respect of NW, they submitted that if proceedings were to be allowed only in relation to the matters alleged against him, it would be insurmountably difficult to ‘disentangle the effects’ of the events which were subject of the claim, let alone other life stressors. The State additionally put forward that in neither the State’s records, nor the Appellant’s medical records, was there any reference to events the subject of the claim which could assist with investigating the foundational facts underpinning the alleged events.
In response, the Appellant argued the State did have the ability to call evidence from other residents of the girls’ dormitory and other supervisors, and the ability to obtain instructions and call evidence from NW, and RS who had also brought a claim against the State relating to sexual abuse allegedly committed by Mr Demlin. Counsel for the Appellant submitted the State could not say it had undertaken all possible enquiries, and additionally, that there was public interest in favour of enabling the proceedings to continue, particularly having regard to the fact that the defendant was the State, not an individual.
Notwithstanding that it was found some documentary records were available, Chief Justice Bowskill found the State had an ‘inability to respond in a trial’ to the Appellant’s allegations and limited means for investigating the alleged facts and matters. Her Honour considered that a heavy emphasis would therefore be placed on oral evidence at trial and given all pivotal witnesses (with the exception of NW) were now deceased or presumed deceased, any trial ‘would be fundamentally unfair and there is nothing that a trial judge could do to overcome that unfairness’. Her Honour confirmed that a permanent stay should only be awarded in exceptional circumstances but held the ‘consequences of the lengthy passage of time since the alleged events occurred’ supported her finding that a permanent stay of the proceedings was warranted.
Appeal
The Appellant relied largely on the arguments raised during the Application, namely that the State had the capacity to obtain critical evidence, obtain instructions from key witnesses and complete further investigations into the alleged events, and submitted that to make such a finding was against the weight of the evidence.
The Court dismissed the Appeal, finding that if damages are allowed to be sought for the matters alleged, then proof the abuse occurred is indispensable to success whether or not the individual who committed such abuse is a party to the proceedings. The Court emphasised the State’s inability to respond to foundational facts and allegations, and call evidence from key witnesses. The Court was unpersuaded by the Appellant’s grounds of appeal relating to extricating the impact of the matters alleged relating to NW, relying on the Appellant’s own expert medical evidence which provided the basis for the State’s arguments. The Court considered the possibility of RS giving evidence at trial but found that any characterisation of her evidence being independent was unrealistic in the context (noting she had also brought a claim against the State) and does not repair the significant disadvantage to the State arising from the unavailability to it of a contradictor or any other person who could give relevant instructions or any relevant contemporaneous documentary evidence (described by Chief Justice Bowskill as ‘cross-examining in the dark’).
The Court ultimately found that there was no error in Chief Justice Bowskill’s exercise of discretion, and therefore the Appeal was dismissed.
Takeaways
- While the LAA allows claimants to proceed in historical abuse cases such as the above, if the passage of time is such that it has a fundamental impact on a respondent’s ability to investigate and defend the claim, a permanent stay may be granted. The LAA allows for this under section 11A (5), which provides that the section does not limit any inherent, implied or statutory jurisdiction of a court, an example being a court’s power to permanently stay proceedings.
- Respondents should conduct comprehensive preliminary investigations upon receipt of a claim to ascertain if all witnesses and documentary evidence has been obtained and preserved to assess whether a permanent stay should be considered. This can be challenging as it is sometimes not until the claim has significantly progressed that the precise evidence required to verify or contradict it can be properly assessed, or facts warranting further enquires are revealed. In Queensland, the pre-litigation steps of the Personal Injuries Proceedings Act 2002 must still be completed before the permanent stay application can be brought.
- Where the time elapsed is large and the claim complicated by multiple instances of alleged abuse and possible causes of injury, it is possible to obtain a permanent stay if it is too difficult for the Court to disentangle the causal link between each alleged act of abuse; however, expert medical evidence will likely be needed to substantiate this position.
- The facts in this case were at one extreme of the spectrum with a striking scarcity of helpful evidence. Where the Courts will draw the line for success or failure of a permanent stay application will be ripe for argument.
Whether the Queensland Court of Appeal’s decision will be appealed to the High Court is yet to be seen; however, an appeal would be unsurprising, given there are presently four appealed permanent stay decisions from various Australian jurisdictions awaiting consideration by the High Court.
The first to be tested, The Trustees of the Roman Catholic Church of the Diocese of Lismore v GLJ[1], which received Special Leave from the High Court and was heard on 8 June 2023. The outcome of this matter will guide applications for permanent stays moving forward, and we will provide a further update when that decision is handed down.