Ada v State of Queensland

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SUPREME COURT OF QUEENSLAND

CITATION:

ADA v State of Queensland [2023] QSC 159

PARTIES:

ADA

(plaintiff/respondent)

v
STATE OF QUEENSLAND

(defendant/applicant)

FILE NO:

BS No 8025 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED ON:

24 July 2023

DELIVERED AT:

Brisbane

HEARING DATE:

24 April 2023; further written submissions filed 9 June 2023 and 14 June 2023

JUDGE:

Cooper J

ORDERS:

1.   The proceeding is permanently stayed.

2.   The judgment of the court in the proceeding is to be presented in a form which avoids disclosing information which would identify the plaintiff.

3.   All documents relating to these proceedings, including court documents, written submissions and transcripts of proceedings, are to be withheld by the court registry from search or inspection by any person other than a party to the proceeding or their legal representatives without an order of the court.

4.   The plaintiff pay the defendant’s costs of the stay application and of the proceeding to be assessed on the standard basis if not agreed.

CATCHWORDS:

STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the plaintiff claims damages in negligence for psychiatric injuries caused by two alleged sexual assaults that occurred in 1968 and 1973 when she was a child in the care of the State – where the State was first informed of the two alleged sexual assaults in 2021 – where the State has not been able to identify the alleged perpetrators of the two sexual assaults and has not located any records relating to either of the alleged assaults – where the State has applied for a permanent stay of the proceeding – whether a fair trial is possible – whether a permanent stay should be granted

Civil Proceedings Act 2011 (Qld), s 7(4)
Constitution of Queensland Act 2001 (Qld), s 58(1)
Limitation of Actions Act 1974 (Qld), s 11A
Personal Injuries Proceedings Act 2002 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 16(g)

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, applied
Brisbane South Regional Heath Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, applied
Chalmers v Leslie (2020) 6 QR 547; [2020] QSC 343, cited
Connellan v Murphy [2017] VSCA 116, applied
GMB v Unitingcare West [2020] WADC 165, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, applied
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, considered
Oram v BHP Mitsui Coal Pty Ltd [2015] 2 Qd R 357; [2014] QSC 230, cited
The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78, cited
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, applied
Ward v The Trustees of the Roman Catholic Church for the Diocese of…

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Details
Case
[2023] QSC 159
Decision Date

CaseChat Overview and Summary

In the case of Ada v State of Queensland, Ada brought an action against the State of Queensland for damages in negligence, claiming she suffered psychiatric injury as a result of two alleged sexual assaults that occurred in 1968 and 1973 while she was a child in the care of the State. The State was first informed of the alleged assaults in 2021 and has not been able to identify the alleged perpetrators or locate any records relating to the alleged assaults. The State applied for a permanent stay of the proceeding on the basis that a fair trial is not possible. The court was required to determine whether a permanent stay should be granted.

The court considered the evidence presented by Ada, which included affidavits from several witnesses who corroborated aspects of her account of the alleged assaults. However, the court also considered the evidence from Ms Hasse, who concluded that there were no persons from whom she could take instructions in respect of Ada's allegations of sexual assault. The court held that the State's inability to identify the alleged perpetrators, the lack of contemporaneous complaints or records, and the absence of any witness statements from anyone who witnessed either of the alleged sexual assaults, meant that a fair trial was not possible. The court also noted that the passage of time since the alleged assaults occurred further compounded the difficulties in conducting a fair trial.

Accordingly, the court granted a permanent stay of the proceeding and ordered that the judgment of the court in the proceeding be presented in a form which avoids disclosing information which would identify Ada. The court also ordered that all documents relating to these proceedings, including court documents, written submissions and transcripts of proceedings, are to be withheld by the court registry from search or inspection by any person other than a party to the proceeding or their legal representatives without an order of the court. The plaintiff was ordered to pay the defendant's costs of the stay application and of the proceeding to be assessed on the standard basis if not agreed.

Orders

Orders of the court

1. The proceeding is permanently stayed.

2. The judgment of the court in the proceeding is to be presented in a form which avoids disclosing information which would identify the plaintiff.

3. All documents relating to these proceedings, including court documents, written submissions and transcripts of proceedings, are to be withheld by the court registry from search or inspection by any person other than a party to the proceeding or their legal representatives without an order of the court.

4. The plaintiff pay the defendant’s costs of the stay application and of the proceeding to be assessed on the standard basis if not agreed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ms Hasse concludes by stating that there are no persons from whom she can take instructions in respect of the plaintiff’s allegations of sexual assault in circumstances where:(a)the alleged perpetrators have not been identified;(b)there were no contemporaneous complaints by the plaintiff and there are no contemporaneous records that would assist in determining whether the plaintiff was abused as alleged;(c)there is no account from any witness with personal knowledge of either of the unnamed perpetrators sexually assaulting the plaintiff;(d)no witness statements have been disclosed by the plaintiff from any person who witnessed either of the alleged sexual assaults.Evidence relied upon as corroborating the plaintiff’s account In addition to her own evidence, the plaintiff filed affidavits from the following potential witnesses whose evidence, the plaintiff submitted, corroborates aspects of her account:(a)Ms Girdler, who resided at the orphanage with the plaintiff and attended the school where the first alleged assault is said to have occurred;(b)Mr Laurens, who was employed as a teacher at the school from 1970 to 1974 or 1975;(c)Ms Grant, who was employed as a teacher at the school from January 1970 to December 1971;(d)Ms Firth and Ms Maher, who both resided at the orphanage with the plaintiff;(e)Mrs Allen, who employed the plaintiff at the time the second alleged assault is said to have occurred. As to the period when the first alleged assault is said to have occurred, Ms Girdler says that within about two or three months of starting at the school the plaintiff seemed scared and nervous walking around the playground and common areas. She says that the plaintiff appeared scared of some of the bigger boys but would not tell Ms Girdler why. She says the plaintiff always seemed very frightened of one particular very big, older boy who Ms Girdler describes as being very slow. As Mr Laurens and Ms Grant were not employed at the school at the time the first alleged assault is said to have occurred neither of them gives any evidence as to the occurrence of that assault. Each of Ms Girdler, Mr Laurens and Ms Grant give evidence about the extent to which students at the school experienced learning and behavioural difficulties as well as the physical layout of the school, including the location of the principal’s office. Mr Laurens and Ms Grant also give evidence about the resources at the school during the period they were employed there, including staff to student ratios. As to the period when the second alleged assault is said to have occurred, Ms Girdler says that she remembers the plaintiff walking on her own to her domestic or child-minding job at a family home near the orphanage. She says that she remembers the plaintiff suddenly started to experience nightmares during that period. The plaintiff’s nightmares would wake Ms Girdler up and she would have to calm the plaintiff down. She recalls the plaintiff yelling out words to the effect of “No, No, Stop”, “No, No, Don’t” or “Stop, Stop.” She recalls asking the plaintiff what was wrong but that the plaintiff would not tell her. She says the plaintiff started to hide in the bedroom at the orphanage and seemed very frightened to leave that room. She describes the plaintiff as becoming withdrawn, nervous and anxious.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.