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 (YZ, a pseudonym) commenced proceedings on 21 November 2019 against the defendant (Alan Weiden) in which he sought damages for psychiatric injuries he claims he sustained due to alleged sexual abuse he experienced by the defendant in 1974/1975 when they were both members of a youth organisation when the plaintiff was aged 12 and the defendant was aged 18. 

The plaintiff also brought proceedings against Beit Habonim Pty Ltd alleging that it was vicariously liable for the tortious conduct of Weiden and/or negligent in its supervision of Weiden and failure to implement protective systems to minimise the risk of harm to its members from sexual misconduct. 

On 17 May 2022, Weiden filed a summons seeking a permanent stay of the plaintiff’s proceeding on the basis that it was an abuse of process. In the alternative, Weiden sought an order staying the proceeding ‘until such time that it had been determined that there was no prospect of any criminal proceeding being brought against [him]’. On 15 July 2022, following a hearing on 7 June 2022, Weiden’s stay application was dismissed by Irving AsJ. 

On 29 July 2022, Weiden filed a notice of appeal from the orders of Irving AsJ. On 2 May 2023, following a hearing on 21 February 2023, Weiden’s appeal from the orders of Irving AsJ was dismissed by Tsalamandris J. 

The present matter was an application for leave to appeal from that decision. The appellate court had the advantage of the reasons of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32.

At [66], the Victorian Court of Appeal provided a summary of the effect of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32: 

Applying GLJ, in a case of the kind referred to in section 27O of the Limitation of Actions Act 1958: 

      • the party seeking a permanent stay bears the onus of establishing more than a mere risk that a trial may be unfair – that party must establish that the trial will be unfair or will involve such unfairness or oppression as to be an abuse of process; 
      • it can no longer be maintained that the passing of time alone enlivens the inherent power or any statutory power of a court to prevent an abuse of its process; 
      • the effect of the passing of time is to be evaluated on the basis that it will be neither uncommon nor unexpected for the circumstances that the limitation period sought to avoid to be encountered; 
      • the common and expected effects of the effluxion of time are not sufficient to constitute the ‘exceptional circumstances’ which would justify a court granting a stay and refusing to exercise its jurisdiction; and 
      • any inevitable impoverishment of the evidence which the passing of time occasions cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay. 

At [76], the Court provided: 

Weiden bore the onus of proving that the plaintiff’s proceeding was an abuse of process. He failed to discharge that burden, and thus it was held that Irving AsJ was correct to refuse his application for a permanent stay, and Tsalamandris J was correct to dismiss his appeal. The proposed appeal had no real prospect of success. Accordingly, leave to appeal was refused. 

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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