Since the Royal Commission into institutional child sexual abuse and the removal of the statutory limitation period for child sexual abuse claims in most states there have been a flurry of historical sexual abuse claims against schools, churches, institutions and associations. Given the historical nature of these claims, evidentiary issues can be problematic for defendants – relevant employees or members with knowledge of a complainant or perpetrator may have since died, leaving defendants with no real evidence to establish a defence.
The issue has recently been considered in two cases in the NSW Court of Appeal and Supreme Court, where permanent stays of proceedings were granted in respect of claims concerning abuse perpetrated by a teacher in the mid-1970s and a priest in the mid-1940s.
- Whether the passage of time (and unavailability of relevant witnesses) causes prejudice to a defendant by preventing it from responding to allegations; and
- Whether any prejudice was due to a defendant’s own neglect and default.
The Council of Trinity Grammar School v Anderson  NSWCA 292
Mr Anderson attended Trinity Preparatory School and Senior School (the School) in the mid-1970s. He alleged that a teacher, Mr Futcher, sexually abused him while a student. Mr Futcher admitted four of the alleged incidents of abuse. Mr Anderson raised the allegations with police in 1997, who subsequently notified the School. The Headmaster of Trinity at the time of the assaults was Mr Wilson-Hogg and Reverend Sandars was the Master in Charge of the Preparatory School.
In 2004, Mr Anderson’s solicitors sent a letter of demand to the School alleging negligence. The School denied liability and indicated that the claim was statute-barred (as it was at that time). The School received no response.
In April 2015 Mr West, the successor Headmaster to Mr Wilson-Hogg was interviewed by Police. On 25 January 2016, Mr West died.
Mr Anderson commenced proceedings in January 2016 and sought an extension of the limitation period. In March 2016, NSW abolished the time limit to bring proceedings in respect of child sexual abuse claims. The School sought a permanent stay of the proceedings on the basis that a fair trial was not possible due to the lapse of time. The claim against the School was that it breached its non-delegable duty of care and was vicariously liable for the acts of Futcher - evidence was required on Futcher’s role at the School from Futcher’s supervisors (i.e. Mr Wilson-Hogg and Reverend Sandars) both of whom had already died. .
At first instance the court dismissed the School’s application on the basis that it had failed to undertake sufficient investigations. In addition, although a number of key witnesses were deceased, Mr Anderson and his parents were available to give evidence, as was Mr Futcher.
Decision on appeal
The Court of Appeal overturned the first instance decision and granted a permanent stay of the proceedings. The Court of Appeal held that the School was unable to meaningfully respond to the claim where it had no contemporaneous documentary evidence or available witnesses relevant to the critical issues due to the passage of time.
While Mr Anderson had raised the matter with the School on prior occasions, the Court of Appeal found that the School’s inquiries at those times were reasonable. It would have been oppressive and unfairly burdensome for the School to pursue all lines of inquiry when any claim (prior to 2016) would have been statute barred.
The Court of Appeal held that the School was prejudiced due to the delay, which was not a result of its own neglect or default.
Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore  NSWSC 1776
Ms Ward sued the Roman Catholic Church for the Diocese of Lismore (the Church) for sexual abuse perpetrated against her as a child by Father Curran in the 1940s. Ms Ward alleged that in 2018 she contacted Father Donnelley, who was also at the Church in the 1940s, regarding the abuse. Father Donnelley indicated that he had knowledge that Father Curran had abused a number of other young girls.
The Church sought a permanent stay of the proceedings due to the prejudice caused by the lapse of time.
Decision at trial
The NSW Supreme Court held that a permanent stay must be granted, taking into account that 70 years had elapsed since the alleged abuse and that the only two witnesses were the plaintiff and Father Curran, who had died 60 years earlier.
The court indicated that a permanent stay is an exceptional remedy with a heavy burden imposed on the defendant to make its case. It was determined a fair trial was not possible as the Church had no real opportunity to participate in the hearing. While the court held that the evidence of Ms Ward’s conversation with Father Donnelley was admissible, Father Donnelley did not hold a position in the Church until after the alleged abuse had occurred and he only had knowledge of abuse against other children, not Ms Ward specifically.
Implications for you
Following the earlier decision of Moubarak by his tutor Coorey v Holt  NSWCA 102, these decisions demonstrate that despite the fact that child sexual abuse claims are no longer statute barred, if the lack of evidence or passage of time would result in a defendant being unfairly prejudiced or unable to mount any defence, the court will consider a permanent stay.
These decisions will go some way to redressing the difficult balance of the rights of abuse victims to prosecute their claims and the entitlement of defendant organisations to a fair trial.
However, organisations that are involved in abuse claims and their insurers should not expect that a permanent stay will automatically be granted. Each case will be decided on its specific facts and at the discretion of the Court. As was stated in Ward, an application for a permanent stay places a heavy burden on a defendant to demonstrate sufficient prejudice for the discretion to be exercised in its favour.