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 (DJW, a pseudonym) commenced proceedings on 5 August 2021 against the defendant (the State of Queensland) in which he sought damages for psychiatric injuries he claims he sustained due to alleged physical and sexual abuse he experienced while residing in the Cherbourg Girls’ Dormitory and Cherbourg Boys’ Dormitory as a young boy.

The plaintiff’s case is that the defendant owed him a non-delegable duty of care to protect him from suffering psychiatric injury as a result of physical and sexual abuse. The plaintiff submits that the defendant breached its duty by, amongst other things, failing to provide adequate supervision within the dormitories and failing to have an adequate system in place to avoid placing him in a position where he would be sexually abused by other residents.

Further, the plaintiff claims that the defendant is vicariously liable for the alleged deliberate sexual assaults perpetrated upon him by Aunty Marlene. The plaintiff contends that this abuse occurred at times when the defendant had placed him under the direct care and control of Aunty Marlene in the Girls’ Dormitory.

The defendant denied liability, submitting that that the defendant did not owe the plaintiff a duty in the terms asserted by him and the defendant denies that they are vicariously liable for any acts of sexual abuse committed by Aunty Marlene. Further, the defendant denies that any psychiatric injury sustained by the plaintiff is causally related to any alleged acts of physical or sexual abuse.

The defendant filed an application in the Supreme Court of Queensland seeking a permanent stay of the plaintiff’s proceedings. The defendant submitted that (at [174] to [179]):

First, the State notes that it first became aware of DJW’s complaints, concerning events that allegedly took place somewhere between 50 and 60 years, when DJW gave notice of his claim under the PIPA on 29 November 2019. Accordingly, the State had no prior awareness of DJW’s claim and no prior opportunity to investigate the specific allegations he now makes.

Second, all the named perpetrators of the alleged sexual abuse against DJW, and the management and supervisory staff within the dormitories at the relevant times of the alleged events, are now deceased. Accordingly, the State is unable to obtain information or instructions from those persons in order to deal with DJW’s allegations.

Third, despite searches for relevant documents having been undertaken, there are no records or documents concerning complaints of the kind made by DJW.

Fourth, attributing causation in this case is problematic, as there are several potential causes of DJW’s psychiatric injuries. Whilst DJW claims the cause of his injuries is the abuse he experienced whilst he was a resident of the dormitories, given that he left the dormitories when he was nine years old and then experienced family circumstances which he himself described as ‘horrible’, the State contends there are obviously other ‘non-actionable’ circumstances which contribute to DJW’s psychiatric conditions.

Fifth, the alleged incident involving the rape perpetrated by Vincent Serico poses particular difficulties for the State, as it is a single alleged instance of abuse which is said to have occurred at a camp away from the Boys’ Dormitory. As with the other allegations made by DJW, the alleged perpetrator of the act and the supervisory staff supposedly present at the camp are deceased. Further, no documents or records exist in respect of this alleged incident.

In response to DJW argument that the State has not made all reasonable enquiries as there are many potential witnesses who may be available to give evidence about matters relevant to DJW’s claim, the State maintains that it is not incumbent upon it to go and speak to every possible person who might have been a resident in the dormitories at the relevant time, to see if they remember anything about the matters that are the subject of DJW’s claim. Rather, the State submits, the case that the State has to meet is that which is pleaded by DJW in the ASOC.

In response, the plaintiff submitted that it is premature to determine that defendant’s permanent stay application because (at [181] to [185):

First, there are a significant number of witnesses who can give evidence about the lack of supervision and the circumstances generally within the Girls’ Dormitory. DJW submits that despite the State being aware of these potential witnesses, it has chosen not to interview any of those persons, other than CB. Accordingly, DJW submits, the State has failed to discharge its onus to make all reasonable enquiries which bear upon the fairness or unfairness of the proceedings.

Second, the application for a permanent stay at this stage is premature. DJW argues there are several investigations that are still to be carried out and if the State is unwilling to undertake those investigations, DJW wishes to do so. DJW submits that his own preliminary investigations have already produced substantiative evidence in support of his allegations.

Third, DJW’s case is different from the vast majority of other cases of this kind, such as the case of Joanne Willmot and GLJ, which each involved cases of alleged sexual abuse occurring within private residences. In contrast, DJW’s case involves alleged sexual abuse on the State’s premises, when DJW was under the direct supervision and control of the State’s employees. DJW submits there is good evidence available to demonstrate that children within the dormitories were not being properly supervised at the relevant time and the assaults DJW sustained were a manifestation of that unsafe system.

Fourth, it is highly unlikely that any of the alleged assailants would have been available to give evidence even if they were not deceased. For example, DJW submits, given that Marlene Willmot was not an employee of the State, and any interview she might have given would potentially have exposed her to criminal prosecution, it is unlikely she would have been able to be interviewed and unlikely that she would have given evidence at a trial.

Fifth, there is no evidence from either of the psychiatrists who have provided medico­legal reports to support the proposition advanced by the State that the disentanglement process the Court would be required to undertake in order to determine causation is insurmountably difficult.

In response to the plaintiff’s third submission above, the Court provided at [11] and [12]:

On 16 May 2023, the Court of Appeal delivered its judgment in the case of Joanne Willmot. Accordingly, awaiting the outcome of that appeal is no longer an impediment to the determination of the present application.

On 8 June 2023, the High Court heard the appeal in GLJ and reserved its decision. Notwithstanding that the Court is yet to deliver its judgment, I do not consider it necessary to await the outcome of that appeal before determining the present application. The outcome of GLJ has no direct bearing on DJW’s case. It is an instance where a permanent stay was granted in respect of a civil claim for damages predicated upon alleged historical acts of child sexual abuse perpetrated upon a plaintiff. No argument was put by either party that the High Court’s judgment might affect the principles that are to be applied by me in deciding this application.

On 19 October 2023, the Queensland Supreme Court through Crowley J provided at [197], [198], [199], and [231] as follows:

No amount of further investigation or enquiry will enable the State to do anything more than plead, as it presently does in its Amended Defence, that it does not admit that the alleged instances of abuse occurred as DJW’s claims. That being so, if the matter went to trial, DJW would be put to proof on these issues, DJW would give evidence that they occurred, the State would be in no position to positively contradict such testimony and the trial judge would be invited by DJW to adjudicate and conclude, on the basis of his uncontradicted evidence, that they did occur.

In my opinion, such a proceeding would not constitute a fair trial. Proof of the critical foundational allegations underpinning DJW’s claim would be reduced to no more than a staged formality. The State would be unable to meaningfully participate in the trial in this critical aspect because of the impoverishment of the available evidence due to the passage of time.

In my view, the position is thus similar to that encountered in the case of Joanne Willmot, where the State had no means of investigating the foundational facts underpinning the alleged acts of abuse which would have been critical to establishing liability at trial. As the Court of Appeal observed in that case, where a plaintiff seeks damages for child sexual or other physical abuse, proof that the alleged wrongful acts occurred is indispensable to the success of the plaintiffs claim.

…I am satisfied that the continuation of the proceedings would be an abuse of process. It would be unfairly oppressive and prejudicial to the State and would bring the administration of justice into disrepute. The trial of the proceedings would be a. trial in name only. The State’s inability to meaningfully respond to DJW’s allegations and participate in the trial process, insofar as the crucial foundational allegations are concerned, would render the proceedings a ‘solemn farce’.

Ultimately, the Court granted the defendant’s application for a permanent stay of the plaintiff’s proceedings. The Court further ordered that the plaintiff pay the defendant’s costs of and incidental to the application and the proceedings on a standard basis.

Further updates in relation to the stay of proceedings of historical abuse cases can be found in other articles on our website written by Emily Wright and our office.

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