Permanent stay overturned in part: Willmot v State of QLD [2024] HCA 42

The background Facts

In June 2020, the Plaintiff commenced proceedings against the State of QLD (the State) seeking damages for:

• sexual abuse by her foster father, during her foster placement with the Demlin family, between 1957 and 1959;
• physical abuse by her foster parents, during the same foster placement with the Demlin family, between 1957 and 1959;
• physical abuse by the supervisor of the Cherbourg Girls’ Dormitory (the Dormitory) in 1959, during the Plaintiff’s various placements in the Dormitory;
• sexual abuse by her uncle, NW, that occurred when she was granted permission to leave the Dormitory and visit her grandmother in 1960; and
• sexual abuse by her cousin/great-uncle, known as ‘Uncle Pickering’, that occurred when she was granted permission to leave the Dormitory and visit her grandmother in 1967.
  

The Plaintiff alleged that the State was responsible for these incidents on the basis that it engaged the Demlin family as foster parents, and also maintained its responsibility to ensure her care whilst she was in this placement, at the Dormitory or on approved visitation from the Dormitory.

The State did not admit the allegations of abuse and argued that the physical abuse alleged did not raise to the level of serious physical abuse or psychological abuse within the meaning of section 11A(6) of the Limitation of Actions Act 1974 (QLD).

At the relevant time, the Plaintiff was a Ward of the State and subject to the Aboriginals Protection and Restriction of Sale of Opium Act 1897 (QLD), which made provision for her protection, care and removal.

The State admitted that in its care and protection of the Plaintiff, as a Ward of the State, it owed her a non-delegable duty of care to ensure that reasonable care was taken for her safety. The State did not admit breach of its duty of care on the basis that it could not ascertain the veracity of the allegations of abuse.

There was no claim made by the Plaintiff for vicarious liability against the State for any of the allegations of abuse. 

Lower courts 

The State contended that due to the allegations taking place in excess of 60 years prior, it was unable to ascertain the veracity of the allegations of the abuse and it was prejudiced in its defence of the claim accordingly such that no fair trial could take place. The State sought an order for a permanent stay of the entirety of the proceedings.

The primary judge granted a permanent stay.

The Court of Appeal dismissed the Plaintiff’s appeal.

High Court

The High Court focused on the relevant inquiry being whether the prospective trial would be so unfair or so unfairly and unjustifiably oppressive so as to constitute an abuse of process.

The High Court was mindful of the ‘new reality’ that had developed since the removal of the limitation barrier, such that child sexual abuse claims may be commenced may years after the alleged abuse occurred.

The legislative change removed the presumption that a plaintiff was not to sit on their rights and then be held responsible for any consequences adverse to their interests. The intention of the legislative amendment was to address the fact that victims of child sexual abuse often disclose their abuse many years after the incidents, often outside of the prior limitation periods, and the removal was to ensure that plaintiffs are not subject to a requirement to explain this delay. The ‘impoverishment’ of evidence is now to be encountered and is in fact expected in these cases.

The High Court found that each case, decided on its own unique merits, ultimately considers whether the trial of the pleaded allegations would be necessarily unfair. In this, the Court noted that it:

• is expected that for claims of child sexual abuse be made where there may not be documentary evidence or direct corroborating evidence, particularly given the usual perpetration of such abuse being done in secret;
• inevitable fading of memories and loss of evidence (whether it be from death, illness, infirmity, or the loss or destruction of documents) are routine and expected;
• limited or unavailable evidence is not unique to cases with a passage of time between the incident and proceedings, and the Courts have already adopted a cautious approach case to guard against false claims;
• whilst corroboration will assist, there is no rule of law that there can be no claim without corroboration, as is often the case with criminal claims and the Court has already shown the principles and techniques exercised in accepting uncorroborated evidence and in careful scrutiny of such evidence; and
• the use of a stay of proceedings is not to be treated as a trial of the issues, and is an application proceeded on the basis that the Plaintiff is in a position to produce evidence to support its case. It is on the Defendant to say what would make the trial of each set of allegations unfair, including from the nature of the evidence being called.

The State relied on the following factors in submitting that a fair trial was not possible:

• the Plaintiff did not have a recollection of the alleged abuse until she had a conversation with another complainant, RS, in 2016. As a consequence, the State’s inability to investigate and respond to the Plaintiff’s allegations was as a result of RS’ disclosure;
• the Plaintiff’s reference to and reliance on RS’ allegations were an attempt to bolster her own allegations, with the effect that the unfairness to the State was magnified as RS was not an independent witness and the consequential possibility of unconscious reconstruction of the Plaintiff’s memory; and
• the general unavailability of witnesses and evidence due to the passage of time.

The High Court was critical that:

1. the State did not identify whether there was a loss of documentation and did not conduct thorough searches in this respect’;
2. key witnesses were available (RS and NW);
3. there were contemporaneous reports of complaints regarding physical abuse by the supervisor of the Girls’ Dormitory; and
4. Generally, that where it was admitted that the State had control of the Plaintiff, that all it was deprived of was a bare denial.

In maintaining the stay on the physical abuse, the Court noted that the Plaintiff’s allegations did not provide any details of the alleged abuse, including dates, locations, presence of witnesses, the nature of the incidents and who perpetrated the incidents – such that they were so vague that they were incapable of any meaningful response, defence or contradiction.

Similarly, in maintaining the stay on the ‘Pickering’ abuse, the Court noted that there was no evidence that the Plaintiff received permission to leave the Girls’ Dormitory to visit her grandmother on this occasion. ‘Pickering’ is unable to be identified and the Plaintiff was unable to ascertain whether ‘Pickering’ lived in her grandmother’s home. In the circumstances, the State’s participation would be limited to a cross-examination of the Plaintiff in the absence of any other evidence.

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.