LIMITATION OF ACTIONS – Appeal – Personal injury claim – Claim for damages for alleged sexual assaults – Events alleged to have occurred almost 50 years ago – No limitation period – Whether proceeding should be stayed as an abuse of process – Limitation of Actions Act 1958, s 27R.
PRACTICE AND PROCEDURE – Permanent stay – Abuse of process – Categories of abuse of process not closed – Abuse of process not confined to cases where defendant would not receive a fair trial – Claim brought in respect of events alleged to have occurred between children almost 50 years ago – Whether it would be manifestly unfair to defendant or would otherwise bring administration of justice into disrepute if claim proceeded – Primary judge refused application for stay – Plainly unjust to let action proceed – Application for leave to appeal granted – Appeal allowed – Permanent stay ordered.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr J P Gorton QC with Mr P H Caillard
James Matthies, Keogh & Co
For the Respondent
Mr S A O’Meara QC with Mr S E Gladman
Kelly Schober, Arnold Thomas & Becker
PRIEST JA
BEACH JA KAYE JA:
This case concerns events alleged to have occurred almost 50 years ago. The plaintiff (Marita Murphy), who was born on 19 July 1961, alleges that the defendant (John Connellan), who was born on 12 December 1954, sexually assaulted her, on two occasions, in ‘approximately 1967 or 1968’. The defendant denies the plaintiff’s allegations, saying that the first time he had any contact with the plaintiff was in April or early May 2015 when she attended his place of business and left a newspaper article with handwriting on it.
In April 2016, the plaintiff commenced a proceeding in the County Court against the defendant claiming damages in respect of psychological injuries which are said to have been a result of the two sexual assaults the plaintiff alleges the defendant committed.
For many years prior to 1 July 2015, the plaintiff’s alleged cause of action was statute-barred.[1] On 1 July 2015, the Limitation of Actions Amendment (Child Abuse) Act 2015 (‘the 2015 Act’) commenced operation. The 2015 Act inserted div 5 (ss 27O–27R) into pt IIA of the Limitation of Actions Act 1958. The effect of ss 27O and 27P is that, from 1 July 2015 there has been no limitation period applicable to the plaintiff’s alleged cause of action. However, s 27R provides:
27R Interaction with other powers of court
Nothing in this Division limits—
(a)in the case of the Supreme Court, the court's inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or
(b)in the case of a court…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Connellan v Murphy [2017] VSCA 116
Case
[2017] VSCA 116
Decision Date
CaseChat Overview and Summary
In the matter of Connellan v Murphy, the High Court was tasked with determining the merits of an appeal brought by the respondent, Murphy, against a decision of the Supreme Court of Victoria which had dismissed an application to permanently stay proceedings in relation to a personal injury claim. The applicant, Connellan, alleged that the respondent had committed sexual assaults against him when they were children, events which allegedly occurred almost 50 years ago. The respondent argued that the proceeding should be permanently stayed on the grounds that it was an abuse of process and that it was manifestly unfair and would bring the administration of justice into disrepute if the proceedings were allowed to continue.
The central legal issue for the court was whether the proceeding should be permanently stayed as an abuse of process. The court needed to determine whether the categories of abuse of process were closed and if they were not, whether the particular circumstances of this case warranted a permanent stay. The court considered whether abuse of process was confined to cases where the defendant would not receive a fair trial or whether it could be applied in other circumstances. Specifically, the court needed to decide whether it would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute if the claim proceeded.
The court held that the categories of abuse of process were not closed and that the concept could be applied in circumstances other than where the defendant would not receive a fair trial. The court found that in this case, it would be plainly unjust to allow the action to proceed and that the proceeding was an abuse of process. The events in question had occurred almost 50 years ago and there was significant doubt about the reliability of the evidence that would be available. The court concluded that it was manifestly unfair to the respondent and would bring the administration of justice into disrepute if the claim proceeded. The primary judge’s decision to refuse the application for a stay was therefore erroneous, and the application for leave to appeal was granted. The appeal was allowed and a permanent stay was ordered.