Abuse Law – Stay of Proceedings Case Law Update

Stewart v Ma [2023] NSWSC 1046  

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 (Sandra Joy Stewart) commenced proceedings on 2 September 2021 against the defendant (Jianhua Ma) in which she sought damages in relation to her father (Ross Henry Stewart) (now deceased) regularly sexually abused her between 1964 and 1977 when the plaintiff was aged between 4 and 17 years old. The defendant executor (the plaintiff’s stepmother) filed a Defence in which she stated that she does not know and cannot admit that the plaintiff and the father were the victim and perpetrator respectively of sexual assaults which would regularly occur in the family home at Dee Why, or else in the backseat of the deceased father’s motor vehicle.

On 3 June 2022, the defendant filed an application seeking a permanent stay of the plaintiff’s proceedings. The defendant submitted that (at [59] to [64]):

  • … she is the defendant in the proceedings by reason only of being the executor of her deceased husband’s Estate. She draws attention to the fact that the Estate, including the value of the apartment in which she lives, has assets of about $1.5 million. In the course of the hearing of this application, it was plain that if successful, the plaintiff would wish to recover damages in a sum equal to or greater than the value of the entire Estate. She submits that this is one feature of the prejudice which she faces by having to defend the common law claim. 
  • … the grant of a permanent stay is the only appropriate way to ameliorate the manifest unfairness to the Estate of meeting the allegations of sexual abuse at a trial of the common law claim. She notes that the events occurred between 47 and 58 years ago; that the only direct evidence in support of the allegations are the statements of the plaintiff; and that the only person who can directly rebut the allegations, namely her late husband, is dead. She submits that at no time prior to his death was her late husband confronted with the allegations and, accordingly, not only she, but he also, have not been able to refute them. She submits that as she was only on notice of the allegations after her husband’s death, she could not make any enquiry of him. She also notes that the only possible contemporaneous witness (of, at least, the surrounding circumstances of the alleged abuse), namely, the plaintiff’s mother, has been dead for 20 years. 
  • … this is not a case in which any possible enquiries which she might make could ameliorate the manifest prejudice occasioned by (i) the lapse of time since the events in question occurred, (ii) the death of her husband without his being confronted by the allegations, and (iii) her inability to give any instructions to her lawyers to contest the proceedings. 
  • … this is not a case in which any allegation of vicarious liability is raised. Rather, the claim against the Estate arises directly as a consequence of the deceased being alleged to be the perpetrator, with the consequences that damages would be payable. The defendant submits that this means, differently from claims against an institution for historical sexual abuse, that the only way in which this matter can be approached is for the evidence of the alleged perpetrator to be available. It is not. 
  • … as the common law claim is different from the Estate claim, and that there is no necessary inconsistency between the grant of a permanent stay of these proceedings where the Court is required to make a determination about the facts of the alleged sexual abuse, and the Estate claim where the fact of the sexual abuse if proved is a discretionary component of the assessment of the plaintiff’s entitlement to a greater share of the Estate than provided for by the deceased’s Will. Accordingly, the defendant says that the prejudice to the plaintiff which exists through the grant of a permanent stay is much diminished.

On 8 September 2023, the New South Wales Supreme Court through Garling J provided at [84], [86] and [90] as follows: 

Given the passage of time since the events occurred, the absence of any account of the observable effects of the initial single occasion Job Park assault on the plaintiff, and the absence of any account about the ongoing sexual abuse upon which the common law claim is based, the defendant is confronted with an impossible task to discharge the relevant onus to demonstrate what the impact of each of the alleged occasions of the abuse was on the plaintiff’s current psychological and psychiatric state. 

I accept the submissions of the defendant that the various features identified as being salient, and of substance in Moubarak, are substantially present in these proceedings. 

I do not accept that there are any investigations which the defendant acting reasonably ought to have undertaken. Whether or the not the defendant interviewed the family members identified by the plaintiff as being possible witnesses, given the contents of their affidavits provided in these proceedings, is of no moment. They did not witness what happened. They were unaware of the alleged abuse. Given that they express a generally unfavourable view of the character of the deceased, there is no reason to think that if they had any knowledge about the assaults, that such knowledge would not have been contained in their affidavits.

In many cases arising from historical sexual assault, which are now able to be brought to court by reason of the amendments to the Limitation Act 1969, and particularly in those cases where many decades have passed since the events the subject of the common law claim for damages occurred, there will be real questions about whether a fair trial can be had. That is because of the passage of time, the death or unavailability of witnesses and the loss or destruction of contemporaneous documents.

Ultimately, the Court granted the defendant’s application for a permanent stay of the plaintiff’s proceedings, providing at [91] to [93]:

The question of whether a fair trial can be had is an objective one viewed in the context of adversarial litigation of the kind which exists in our judicial system. The existence of the adversarial system means that, in cases such as this, there are two sides who contest the proceedings – one making allegations and the other defending those allegations to the extent which is appropriate. Each of the parties have to be in a position to instruct their lawyers as to the facts of the events and as to what occurred and as to how their lawyers are to conduct the litigation.

Particularly is this so when allegations are made which are of some age – here, around 45 years or more have passed since the events relied upon. In some cases, there may be contemporaneous documents or the existence of contemporaneous conduct such as interviews with police which are available, although there has been a lapse of time since that the events occurred. There may be a record of the attitude of one of the parties to allegations as to what occurred, allegations having been raised, having given instructions and retained lawyers: see Gorman v McKnight (supra). Each of these matters may lead to a finding that a fair trial may be possible, even though the trial may not be perfect: see The Queen v Edwards [2009] HCA 20. There may be many other ways in which a fair trial can be had.

However, in this case, for all of the foregoing reasons, I am persuaded that in the particular circumstances, a fair trial is simply not possible. Any trial in this matter would be manifestly unfair to the defendant and would constitute nothing more than a one-sided “… formal enactment of the process of hearing and determining the plaintiff’s claim could take place …”: Newcastle City Council v Batistatos [2005] NSWCA 20 at [80] per Bryson JA. Accordingly, it is appropriate that the Court permanently stay this suit.

The Court further ordered that the plaintiff pay the defendant’s costs.  

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.  

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 the author, Emily Wright, at Littles Lawyers today.

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