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 (Domenic Colbert, a pseudonym) commenced proceedings on 18 December 2023 (amended Statement of Claim) against the defendant (the Trustees of the Christian Brothers) in which the plaintiff sought damages for psychiatric injuries as a result of sexual and physical abuse said to have been whilst the plaintiff was a student at St Paul’s Technical College, Ballarat, in the period 1952 to 1955.

The alleged perpetrators (Brother North and Brother Archer, who were both teachers at the College) and many other relevant witnesses were now deceased. There had been no complaint by the plaintiff prior to the death of either alleged perpetrator or until many years later.

The defendant filed an application seeking a permanent stay of the proceeding on the basis that a fair trial could no longer be held due to the significant passage of time since the alleged abuse, one of the alleged offenders having died in 1960 and the other in 1997, no history of complaints against one brother, and a single prior complaint against the other brother, which was made 11 years after he died and did not relate to the period of that perpetrator’s service at the St Paul’s Technical College, Ballarat.

On 13 June 2024, the Victoria Supreme Court ultimately refused the defendant’s application seeking a permanent stay of the plaintiff’s proceedings, noting at [173] as follows:

In that sense, whatever might be said about cases in other contexts, the effect of delay upon the present case does not mean that a trial would be unfair or present as ‘no more than an informal enactment of the process of hearing and determining the plaintiff’s claim’. Indeed, for the reasons which I have sought to explain, there would be meaningful points available to the defendant as well as the prospect of a real contest in which it could not presently be said that either party would necessarily prevail.

After the primary decision, the defendant sought leave to appeal. Leave to appeal against a refusal of a stay of proceedings in this matter was granted, but the appeal was dismissed.

The court observed that the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available (at [70]).

The court further provided at [75] and [80] as follows:

The defendant’s submission that GLJ does not stand for the proposition that impoverishment of evidence is no longer a relevant factor to be considered in an application for a permanent stay of a proceeding involving child abuse is undoubtedly correct. If the impoverishment of evidence caused by the passing of time would (not might) prevent a fair trial irrespective of the potential application of the range of principles and techniques of the common law being available to a court, then principle dictates that such a proceeding be stayed.

The plaintiff’s claim that he was physically and sexually abused by Brother North and Brother Archer is heavily dependent upon the evidence of the plaintiff. As matters currently stand, there is no other evidence which either party is able to call on that issue. The defendant’s defence of this issue is plainly hampered by the fact that Brother North and Brother Archer died many years ago.

However, the court was of the view that the plaintiff’s case was capable of being defended by reference to the plaintiff’s cognitive deficits and by use of “the principles and techniques available to the trial judge to deal with the evidentiary imbalance”. At [81] the court referred to the matters mentioned in Willmot v Queensland [2024] HCA 42:

First, courts recognise that the degree of satisfaction required under the civil standard of proof may vary according to the gravity of the fact to be proved. Second, all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. Third, a court is not bound to accept uncontradicted evidence and the ‘facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied’. Fourth, courts are mindful that ordinary human experience exposes that human memory is ‘fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time’. And fifth, where a claim is based upon an interaction with a deceased person (or involving a deceased estate) the court will scrutinise the evidence very carefully.

Ultimately, on 3 June 2025, the Victorian Supreme Court of Appeal held that this case was not an exceptional one to as stay should not be granted.

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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