High Court sets aside a permanent stay: RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43

Insurance

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DATE PUBLISHED: December 10, 2024

Overview

The High Court set aside a permanent stay of proceedings relating to allegations of historical abuse, alleged to have occurred in the 1950s and 1960s, despite the death of potential witnesses prior to the allegations being raised, including the alleged perpetrator, the absence of other witnesses who could give relevant information, and the absence of documentary evidence.

key takeaways

The Defendant bears the onus to prove that is has suffered such prejudice that a fair trial is not possible.
The onus of proof includes a casual requirement that the Defendant establish that, due to the lapse in time, there was a loss of opportunities that would have been pursued, or evidence that would have been led with such potential benefit to its defence that any trial would be unfair.
The onus is a heavy one, and a permanent stay will only be granted in exceptional circumstances.

The background Facts

In 2018, the Plaintiff, RC, commenced proceedings in the District Court of Western Australia alleging that, while a resident in a Salvation Army-operated home, in 1959 and 1960 he was sexually assaulted by an officer of the Salvation Army.

RC alleged that the Salvation Army breached a non-delegable duty to take reasonable care for his safety, as well as a statutory duty of care pursuant to the Child Welfare Act 1947 (WA) to ensure he would not be harmed as a result of a breach of that Act and its regulations by the Salvation Army, its servants or agents. RC also claimed that the Salvation Army was vicariously liable for intentional torts committed against him by the officer.

The primary judge

The Salvation Army successfully applied for a permanent stay of the proceedings on the basis that it could not meaningfully defend the proceedings due to:

the death of alleged perpetrator;
the death of potential witnesses prior to the allegations being raised;
the absence of other officers who give relevant information; and
an absence of documentary evidence.

Appeal dismissed

RC’s appeal to the Court of Appeal of the Supreme Court of Western Australia was dismissed.

High Court decision

In applying the principles discussed in Willmot v Queensland [2024] HCA 42, the High Court set aside the permanent stay.

In response to the Salvation’s Army’s asserted prejudice in responding to the proceeding, the High Court determined:

the death of the alleged offender did not demonstrate that the Salvation Army had lost any more than ‘the possibility of a bare denial’ from the alleged offender;
the death of a potential witness to whom a disclosure was allegedly made by RC only deprived the Salvation Army of the possibility that the witness would have denied the disclosure was made, or alternatively, that it was made which would have benefited RC;
similarly, documentary evidence of such a report would have benefitted RC;
other potentially relevant witnesses were alive and available; and
it was open to the Salvation Army to cross-examine RC and others concerning the allegations made against the alleged offender.

In summary, the High Court determined that a respondent’s inability to deny the main allegation is insufficient to warrant a permanent stay.

Impact

The decision reinforces the exceptional nature of a permanent stay as a remedy. Each case will turn on its facts, although defendants must be mindful of the heavy onus they are required to discharge.