As we all may know, permanent stay of proceedings of historical abuse claims is a very live topic in this area of law currently, and it is important that both survivors and practitioners are kept up to date on the Courts decisions and commentary in these application hearings.
In this matter, the plaintiff (Ms Robyn Davey) commenced proceedings on 22 November 2023 against the defendant (Mr George Want) in which the plaintiff sought damages from the Defendant as a result of alleged misconduct (sexual assault) by the Defendant in 1971 and 1972 when the Plaintiff was 6 or 7 years old and the Defendant 18 or 19 years old. They lived close to each other just outside Grafton and could be described as neighbours. The cause of action is the intentional torts of assault and trespass to the person, the particulars of which are two occasions of alleged sexual assault by the Defendant on the Plaintiff, which involved him placing his hands under her underwear and touching her vagina. The Plaintiff contends that the conduct has caused her significant loss and damage because it is, at least, part of the cause of her suffering from post-traumatic stress disorder (“PTSD”) for the majority of her life. The case is complicated by the fact that the Plaintiff accepts that, by the time she was 6 or 7 years old and was allegedly assaulted by the Defendant, she had already been the subject of similar sexual abuse by two adult uncles. The Defendant denies that he ever sexually or otherwise assaulted the Plaintiff.
There was a stay of proceedings application by the Defendant, the fundamental proposition being that the passing of approximately 54 years since the event made it impossible for the Defendant to receive a fair trial. In October 2024, hearing of the application was adjourned pending the High Court’s decision in Willmot v Queensland [2024] HCA 42.
In consideration of Willmot, the District Court provided as follows at [13] to [18]:
At [15] of Willmot, the High Court identifies six propositions stated by Bell P in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218 (“Moubarak”), which I will not reiterate.
Nothing the High Court says thereafter can be read as, in any way, taking issue with those propositions. In effect, the High Court in Willmot expands and explains the rationale of each of Bell P’s points and how they each fit into consideration of an application for a permanent stay in this sort of case.
The High Court, whilst dealing with s 11A of the Limitation of Actions Act 1974 (Qld) (the equivalent of s 6A of the New South Wales legislation), reiterates and perhaps clarifies, not just what Bell P said in Moubarak, but, importantly, what the High Court stated in GLJ and how those principles are to be applied on a case-by-case basis.
The High Court emphasised that the removal of time limits on sexual assault type claims created a “new world” or a “new reality” in a number of separate, but related ways.
First, there is no longer a bar in certain types of cases created by virtue of the effluxion of time imposed by statute. It follows that such a claim can now be brought at any time, with the obvious reality that child sexual abuse claims may be commenced many years after the alleged abuse occurred: Willmot at [20]. Second, because of that, there is no onus on the Plaintiff to justify any delay in bringing proceedings: Willmot at [21]. Third, the inevitable result of commencing proceedings long after the events alleged will give rise to new and greater difficulties in the trial process than had been experienced by courts exercising civil jurisdiction prior to the removal of the limitation period. Thus, part of the “new reality” is that “impoverishment of evidence” will now be encountered and is to be expected in many cases which were previously statute barred, and the courts must deal with that impoverishment: Willmot at [22]. Fourth, impoverishment of evidence caused by the passing of time in of itself will not enliven the power to stay for abuse of process. Something more than the passing of time is needed. That passing of time must be found to have had a “burdensome effect” in the sense of some negative forensic consequence which is “so serious that a fair trial is not possible”: Willmot at [23]. Fifth, a fair trial is an essential common-law right which was not removed by the amendments to the limitation statute. Sixth, the concept of what is a fair trial is flexible and varies from case to case and will change over time with changes to prevailing social values. Ultimately, the question of a fair trial ought be resolved so as to avoid practical injustice: Willmot at [24]-[26]. Seventh, the bringing of proceedings to an end on a finding based on a lack of ability to provide a fair trial to a Defendant must only be used as a “last resort or in “exceptional cases”: Willmot at [26]. Eighth (and perhaps another way of expressing the third and fourth propositions), the inevitable fading of memories and loss of evidence must, in the context of the “new world,” be properly understood as routine and to be expected and thus falls far short of an exceptional case: Willmot at [27].
Finally, at [29] and [30] of Willmot, the High Court emphasised that because cases proceeding where there is an unavailability of evidence is not uncommon in litigation and there is no limitation on criminal prosecutions for serious crimes such as sexual assault, the courts have, over many years, developed techniques to adjust the scales of fairness, so as to counterbalance any prejudice caused to a Defendant by delay and at [30], sets out some of those techniques.
Now dealing with the application, the trial judge was not satisfied that forensic disadvantage is so serious that a fair trial is not possible in the way explained by the High Court in Willmot.
The trial judge then went on to consider the claim, and ultimately entered a verdict for the defendant, noting that the “Plaintiff honestly believes the Defendant sexually assaulted her in 1971 or 1972 and the Defendant honestly believes that he did not“. At [188], the Court provided:
The passage of time is significant and the allegations serious. The Defendant has suffered forensic disadvantage in answering the Claim as a result of that passage of time. When I take all those matters and the other matters I have mentioned into account and weigh them in the balance, I do not feel the requisite level of satisfaction so as to find that the two events occurred.
Ultimately, on 6 June 2025, the New South Wales District Court ordered:
- The Plaintiff’s claim is dismissed.
- Verdict for the Defendant.
- The Plaintiff is to pay the Defendant’s costs of the proceedings.
Further updates in relation to the stay of proceedings of historical abuse cases can be found in other articles on our website.
We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to Littles Lawyers today.
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