While survivors of institutional child abuse have a ‘right’ to institute proceedings (start a court case), the defendant also has ‘rights’. One is to apply to a court to have the case thrown out of court on the basis of an inability to obtain a fair trial. This is known as a stay of proceedings.

Reasons for which a court has granted a permanent stay of proceedings have included:

– limited documentary evidence;

– delay resulting in fading memories of survivors, witnesses, and perpetrators; and

– death of key witnesses, including perpetrators.

Abuse of process?

The irony of the current state of the law is that the defendants right to apply to a court to permanently stay proceedings is so to prevent the possibility of an abuse of process. However, it is the abuses of process by institutions in our country which has enabled the continued and systemic abuse of children.

Many survivors are nervous and fearful about the prospect of a defendant applying to have their case thrown out of court. Some survivors decide not to exercise their common law right at all.

In our experience, some defendants have provided warning that it will exercise its right by bringing an application for a stay of proceeding, should the survivor decide to press on with the claim and start a court case.

Our message to survivors of institutional abuse is to stand strong, and do not be deterred from bringing a common law action.

A number of permanent stay decisions in the context of child abuse have now been handed down in the courts since the removal of the limitation periods for historical child abuse survivors. Although some defendants have been successful, recent cases have demonstrated that the defendants have a difficult task (heavy onus) in seeking a stay of proceedings. A stay is never automatically granted, and it will not be easily granted.

A permanent stay was refused in the recent case GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2021] NSWSC 1204 where the application for a stay was issued in 2020. In this case, the assault was said to have occurred in 1968 and the alleged perpetrator had died in 1996. Despite, amongst other factors, the passage of time and the death of the perpetrator, the primary judge identified a number of considerations which support that a fair trial can still be had, including the body of documentation which demonstrated the perpetrator’s misconduct was well-known to his superiors before the plaintiff was abused. While the perpetrator was not alive to deny the allegations, the judge found plenty of objective evidence that the perpetrator’s credibility could be called into question.

The balance

In an institutional context, it can be more difficult to argue that a fair trial would not be possible, even where witnesses are dead or unavailable and some evidence has been lost. Over the years, many institutions have been put on notice of abuse by serial perpetrators and have assembled documentary evidence.

The courts have recognised a strong public interest in ensuring that survivors of child abuse be given the opportunity to seek compensation. Each case will be decided on its specific facts. Courts are required to carry out the difficult balance of survivors being able to prosecute their claims and the entitlement of defendant institutions to a fair trial.

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