Abuse Law - Stay of Proceedings Case Law Update - RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43
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 commenced court proceedings in 2018 against the defendant for alleged sexual abuse suffered by the plaintiff at Nedlands Boys’ Home at the hands of an officer of the defendant, Lieutenant Frank Swift, in 1959 and 1960. The plaintiff sought damages for breaches of common law and statutory duties by the defendant, and for intentional tort on the part of the perpetrator in which the plaintiff claimed that the defendant was vicariously liable.
Supreme Court & Court of Appeal
In May 2021, the defendant filed an application to permanently stay the plaintiff’s proceeding on the grounds of abuse of process, submitting that:
- the person to whom the abuse was said to have been reported to died in August 1968; and
- the perpetrator died in October 2006.
On 1 December 2021, the Court ordered that the plaintiff’s proceeding by permanently stayed.
This latest decision is in relation to:
- The plaintiff seeking leave to appeal, and to appeal against the primary judge’s decision to permanently stay the proceeding.
- The defendant cross-appealing wherein they are challenging the primary judge’s exercise of the discretion to make no order as to the costs of the application and the action. This cross-appeal also requires leave.
The plaintiff submitted that the primary judge was in error when they decided:
- that the perpetrator died before the defendant became aware of the allegations and, therefore, the defendant did not have an opportunity to investigate;
- if the previous ground was not established, that if the defendant had earlier notice, it would have investigated;
- that the defendant was otherwise prejudiced through the loss of documents and the ability to call witnesses; and
- not to consider evidence given to a Royal Commission by a senior officer of the defendant.
In response the plaintiff’s appeal, the Court of Appeal found (adopting the above numbering):
- Dismissed on the basis that it could not be said that the primary judge erred in finding that the defendant first became aware of the allegations until such time that the perpetrator had died;
- Dismissed on the basis that this ground was not raised with the Primary Court;
- Dismissed on the basis that whilst there were still living witnesses who could give evidence as to abuse at Nedlands Boys’ Home, this would only be of a general nature and not specifically in relation to the plaintiff’s allegations. Due to the death of, or inability to locate, officers/staff of Nedlands Boys’ Home at the time of the alleged abuse, and in circumstances where a considerable period of time has lapsed, a fair trial could not be conducted; and
- Dismissed on the basis that “Any admission that this statement incorporates is of such a general nature that it does not, in our view, overcome the deficit of information facing the respondent with respect to the particular situation at the Home in 1959 and 1960” at [178].
In response to the defendant’s cross-appeal, the Court found at [214] – [215]:
[214] …it was wrong to apply the considerations going to the reasonableness of and the public interest in the appellant commencing the action to the question of the costs of the stay application. In all the circumstances the primary judge’s decision to deprive the respondent of a favourable costs order – by making no order as to the costs of the stay application – was unreasonable or plainly unjust. The ground of cross-appeal should be allowed to this extent.
[215] To not disturb the order as to costs on the stay application would, in our view, work a substantial injustice on the respondent. We grant leave to cross-appeal against the costs order insofar as it relates to the application for the stay, allow the cross-appeal to that extent, and order that the appellant is to pay the respondent’s costs of the application for the stay, on a party/party basis.
Simply put, on 17 February 2023, the Court granted the plaintiff leave to appeal, however, the plaintiff’s appeal was then dismissed. The Court granted the defendant leave to cross-appeal against the costs order insofar as it related to the application for the permanent stay, and ordered that the plaintiff pay the defendant’s costs of the permanent stay application on a party/party basis.
High Court of Australia
In its assessment of the matter, the High Court provided as follows:
Death of Lt Swift
… the Salvation Army does not admit that the Nedlands Sexual Assaults and Abuse occurred. It, however, has failed to demonstrate that it has realistically lost valuable witnesses who might be called at any trial of these allegations. At best, where it has been confirmed that RC and Lt Swift were at the Home at the same time during the relevant period, the Salvation Army shows no more than that it has lost the possibility of a bare denial by Lt Swift. That all that the Salvation Army lost was the possibility of a bare denial is consistent with the description a legal practitioner of the firm which has acted for TSAS in relation to abuse claims since 1994 gave to the Royal Commission about the conduct of those claims. The practitioner said that in his experience “officers almost always den[ied] any allegations of abuse” and, even when officers did admit abuse, “the admissions [were] often partial and limited to particular types of abuse (ie occasional hitting as punishment, but not sexual abuse)”. A cross examiner who is only missing a denial from an alleged perpetrator can still participate in the trial [at 27].
Death of Maj Watson
The Salvation Army has not lost valuable evidence by the death of Maj Watson. At most, Maj Watson could deny that a report was made. His only other possible response – to acknowledge that a report was made in some form – would assist RC. Similarly, the absence of documents relating to that report is not a relevant prejudice to the Salvation Army: either the documents are not known to exist (the current position), or the documents did exist, and that would probably assist RC [at 28].
Other Officers
As to the absence of officers assigned to the Home at the relevant time who are still alive and could provide relevant information, two of the 14 officers assigned to the Home were identified as being alive with available contact details. One former officer, now 86 years of age, was in a nursing home. Her daughter was asked to help obtain answers to questions, but that did not eventuate. A second officer was contacted by telephone in 2020 and a file note was made but not reproduced [at 29].
Further, there is no suggestion that the Salvation Army attempted to seek information from Lt Swift’s wife, Doris Swift, whilst dealing with the many allegations against her husband. Whilst Doris Swift died on 17 May 2019, and appears to have had memory issues for two or so years prior to her death, there is no suggestion that she was unavailable whilst the Salvation Army was dealing with claims against Lt Swift in the early 2000s. Doris Swift was also an officer of the Salvation Army and must have had a detailed understanding of Lt Swift’s duties. Whilst the Salvation Army identified Doris Swift as a potential witness who is no longer available to it, no explanation is given as to why such information was not sought from her prior to her death [at 30].
RC and other alleged victims of abuse by Lt Swift
The Salvation Army is not in the dark about the precise nature of RC’s allegations. Further, RC’s affidavit is detailed and specific. Whilst the passage of time may have had a negative impact on RC’s memory, this can be the subject of cross-examination and a submission that the trial judge should not be satisfied that some or all of the abuse occurred as alleged. RC could also be cross-examined on any discrepancies between the alleged abuse as pleaded and his descriptions of that abuse in his affidavit and the redress application [at 31].
As for the absence of records relating to the complaints, it is unclear what evidence of a failure to make a complaint would add to the trial. Assume the evidence was strong enough to support a finding that it was more probable than not that the plaintiff did not complain: that might have some effect in judging the overall credit of RC, but the fact (if it be so) that there was no complaint would say little about whether the events RC described did or did not occur. The Salvation Army has not established that the trial of that claim will be unfair [at 32].
Moreover, RC identified at least ten potential male witnesses (other than RC) who describe being sexually or physically abused by Lt Swift when they were children at the Home or at the homes in Box Hill or Bayswater in Victoria. There are similarities between that evidence and that of RC, including that Lt Swift: hugged or cuddled them; touched their penis or masturbated them; required or attempted to require them to perform oral sex; attempted or did anally rape them; and sexually abused them in their dormitory. Again, the Salvation Army complained of an absence of records relating to these complaints. But these witnesses can be cross-examined on inconsistencies between their evidence in the ordinary course [at 33].
The Salvation Army does not dispute that evidentiary tools are available to attempt to alleviate unfairness in a prospective trial. As explained above, the Salvation Army has had the opportunity to identify, with a reasonable level of specificity, contextual information. It has not uncovered anything which directly substantiates or casts doubt upon the account given by RC. Showing only that the Salvation Army has not found any external evidence which it might use to challenge RC’s evidence does not show that a trial of RC’s allegations would be unfair [at 34].
The Salvation Army rightly submitted that there is no principled basis on which a judge could realistically reject an apparently credible and coherent account given by a survivor of sexual abuse at any trial. But that submission assumes that, after applying the ordinary common law techniques described in Willmot, RC’s evidence would be accepted as credible and coherent. Equally, as the Salvation Army also acknowledged, the bare fact of some variations in RC’s account of relevant events does not foreclose that the trial judge might be persuaded that RC’s evidence, taken as a whole, is credible and coherent, recognising that it is commonly understood that such variations will often arise in cases of abuse and, in particular, abuse that occurred long in the past. Each of those matters is a question for trial. A trial of the allegations is not unfair merely because a pathway to a successful challenge to RC’s evidence has not been revealed. The Salvation Army has sufficient material available to it to make an informed response to RC’s evidence [at 35].
At [40], the High Court of Australia provided:
The Salvation Army contends that in the end a trial will be a contest where RC makes allegations that the Salvation Army says it can do no more than deny. That contention is an incomplete description of the Salvation Army’s position as it has sufficient information to make a meaningful response to RC’s allegations. In any event, as explained in Willmot, cases where a party can do no more than deny the main allegation are tried in the criminal courts every day. In such cases, a trial judge ordinarily exercises care before accepting uncorroborated evidence of this kind, and the required level of impairment is that the trial would be unfair, even if the trial judge heeds the Longman warnings. In all the circumstances, the Salvation Army has not discharged its heavy onus to obtain a stay because it has not identified that the trial of the joined issues would be unfair.
Ultimately, on 13 November 2024, the High Court of Australia ordered as follows:
- Special leave to appeal granted.
- Appeal allowed with costs, to be taxed if not agree.
- Set aside orders 2, 3, 4 and 5 of the Court of Appeal of the Supreme Court of Western Australia made on 17 February 2023 and, in their place, order that:
a. The appeal be allowed.
b. The orders of the District Court of Western Australia made on 1 December 2021 be set aside and, in their place, order that:
i. the defendant’s application of 25 May 2021 that the plaintiff’s action be permanently stayed be dismissed; and
ii. the defendant pay the plaintiff’s costs of the application forthwith, to be taxed if not agreed.
c. The respondent pay the appellant’s costs of the appeal, to be taxed if not agreed.
Further updates in relation to the stay of proceedings of historical abuse cases can be found in other articles on our website.
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