Connellan v Murphy
[2017] VSCA 116
•22 May 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0029
| JOHN CONNELLAN | Applicant |
| v | |
| MARITA MURPHY | Respondent |
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| JUDGES: | PRIEST, BEACH and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 May 2017 |
| DATE OF JUDGMENT: | 22 May 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 116 |
| JUDGMENT APPEALED FROM: | [2017] VCC 109 (Judge Tsalamandris) |
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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 other than the Supreme Court, the court's implied jurisdiction or statutory jurisdiction; or
(c)any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.
[1]As the plaintiff was not in the custody of a parent at the time her ‘right of action accrued’, the plaintiff’s claim became statute barred on 19 July 1982. Neither the amendments made by the Limitation of Actions (Personal Injury Claims) Act 1983 (by the repeal of ss 5(6) and 23(1)(e) of the Limitation of Actions Act 1958) nor the amendments made by the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (which inserted the provisions in pt IIA of the Limitation of Actions Act 1958) affected or extended that limitation period (see s 11(2) of the Limitation of Actions (Personal Injury) Act 1983 and s 27N(4) of the Limitation of Actions Act 1958).
Example
This Division does not limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.
In the court below, the defendant applied for a permanent stay of the plaintiff’s proceeding on the ground that the proceeding was an abuse of process and/or ‘because the defendant [is] irretrievably prejudiced by reason of the delay’ in the proceeding being brought.
The defendant’s application for a permanent stay came on for hearing on 1 February 2017. On 22 February 2017, the primary judge dismissed the defendant’s application.[2]
[2]Murphy v Connellan [2017] VCC 109 (‘Reasons’).
The defendant now seeks leave to appeal and (if leave is granted) to appeal against the primary judge’s dismissal of his application. The defendant’s proposed grounds of appeal are as follows:
1.The primary judge erred in law in applying the narrow test that a delay in commencing proceedings must have a burdensome effect that is ‘so serious that a fair trial is not possible’ before a Court will order a permanent stay of proceedings for being an abuse of process.
2.The primary judge erred in finding that the prejudice suffered by the applicant is not so serious that a fair trial is not possible.
3.The primary judge erred in making the following findings of fact which were not supported by evidence:
(a)Eugene Lovett is a person who was present when the alleged second assault occurred; and
(b) Eugene Lovett is available to give evidence.
4.The primary judge erred in making a finding of fact and/or proceeding on the assumption that the plaintiff came to stay at the Connellan family home.
5.The primary judge erred in finding that the applicant only suffered ‘general prejudice’ from the lapse of time.
6.The primary judge found that ‘the key factor’ in rejecting the application was that ‘all persons who were present when the alleged second assault occurred are available to give evidence’ [80]. Even if this is correct (see ground 3 above) it is not a relevant consideration in determining whether to grant a stay of proceeding insofar as it related to the first alleged assault.
The plaintiff’s case
The plaintiff’s case is that following the death of her father (who, according to a statement made by the plaintiff to police in August 2013, died on 1 July 1968), the plaintiff’s mother suffered a nervous breakdown and arrangements were made for the plaintiff and her siblings to stay with other families so as to give the plaintiff’s mother some respite. The plaintiff alleges that she was taken to stay at the defendant’s family home on the Nepean Highway in Elsternwick, for some seven to 10 days.
In her August 2013 statement, the plaintiff described her first night in the ‘Conlan’ home. During the course of this night, the plaintiff alleges that she was molested by ‘the oldest boy Eugene’. The plaintiff said:
The first night in their home I was put to bed with a radio bedside. This was a big thrill. But with the house in darkness the oldest boy Eugene came in and molested me with his hands. I was very scared and confused. Nothing like this had ever happened to me before. He was also staying with this family and I realised later in life that he was dark skinned and most likely Aborigine or part of. I had never met one before. I slept fitfully and awoke with the radio still on and the mother angry at me as she had told me to turn it off before going to sleep.
In her August 2013 statement, the plaintiff then described events after the first night as follows:
She [the mother] sent me outside with the boys. Her sons (to the best of my knowledge) were both younger than Eugene, and were named Bill and John. John was the younger of the two, should my memory serve me correctly. They told me where babies came from and asked me if I wanted one. I was used to being with boys, as my family had five older brothers at home. My only sister, the eldest was at the Alfred training to be a nurse.
John digitally raped me in the garden; I remember this well as it both hurt a lot and I felt very embarrassed, distressed and upset. He threatened me not to tell [sic], I find it hard to believe to this day that the mother and (distant) father could not have realised something was amiss. We sat together at the table to have tea. Note: I can recall this incident took place in a dark coloured swing plane hanging from a tree. The nights were filled with horror for me as Eugene and John would come to my bed in the darkness. I remember being touched all over, but can’t expand on this more. I think as an eight year old I have blocked this out.
So the worst incident to clarify is very clear. I was raped under a bridge not far from the seaside. The mother sent us away on bikes and the entire exercise of that day for them was to find a place that all four of us could be so this could occur. They looked at a large bonfire on a piece of vacant land and openly discussed us getting in the midst of it. However before this could happen a man appeared from nowhere doused it with fuel and set fire to it. Although that scared them they took me under a bridge instead where Eugene raped me. All three boys were present as the others both watched and acted as lookouts, and waited.
John was a very willing participant to Eugene. But I recall Bill, the older Conlan boy, while he did nothing to protect me was uncomfortable with the situation. … I cannot remember the circumstances that found me moved to a family friend’s home also in the Melbourne area of Mrs Copley. But I do know that was not part of the plan for me. She was very kind but when she took me shopping prior to me going back home. I remember two things. I got separated from her while out and I stole a green frog that she found in my shoe at her house and we both wondered why I had behaved in that manner. I think she must have known, but as I know she is now deceased, along with my mother we’ll never know.
Father Conlan was a priest and to the best of my limited knowledge it was his brother’s family had me. So the woman may have been his sister-in-law. Mum told me years later that she wrote to her with an account of what had occurred and had received a reply from this woman that as I had ‘sexed’ (wrongly) a white rabbit they had owned while I was there that I knew all about sex anyway. I state this IS/WAS NOT true at that time.
In a written statement to police made in May 2014, the plaintiff refers again to staying with the ‘Conlan’ family, who had two sons, John and William, and who were ‘caring for an Aboriginal boy named Eugene’. Eugene was said to be the oldest (15 or 16 years of age). William (Bill) was said to be 15 years old and John was said to be 14 years old. In her May 2014 statement to police, the plaintiff gave the following details of the two alleged sexual assaults:
·On one particular day the plaintiff was in the backyard of the Conlan’s home when John digitally raped her. He poked his finger inside her vagina.
·On another occasion Mrs Conlan asked the boys to take the plaintiff to the beach. On the way to the beach the boys, William, John and Eugene took her to a place underneath a bridge.
·William kept lookout while Eugene and John removed their penises from their pants.
·Eugene undressed her and lay on top of her putting his penis against (touching) her vagina.
·‘I don’t know if it went inside me or not.’ ‘I think he ejaculated but I can’t be sure.’
·John then did the same thing. ‘I can’t say if his penis went inside me or not.’ ‘All I can say is that they raped me.’ ‘I can’t remember any more about that because it was so long ago and I have suppressed the memories.’
The plaintiff’s statement of claim pleads that she has suffered a chronic post-traumatic stress disorder, anxiety, upset, depression and a mental reaction to trauma as a result of the two alleged sexual assaults. The sexual assaults are alleged to have occurred within days of each other.
The first sexual assault is alleged in the following terms:
The defendant took the plaintiff into the backyard of the Connellan family home. He asked her if she knew where babies came from and if she wanted one. He then took the plaintiff into the bushes where they could not be seen. The defendant removed the plaintiff’s lower garments and inserted his finger into the plaintiff’s vagina. The defendant called this act a ‘poke’. He warned the plaintiff not to say anything about the ‘poke’ at the dinner table.
While the first sexual assault is pleaded as having occurred in bushes where the plaintiff and the defendant could not be seen, we note that in her August 2013 statement the plaintiff said that the first sexual assault took place ‘in a dark coloured swing plane hanging from a tree’.
The second assault is alleged in the following terms:
The plaintiff was led by the defendant and his brothers to a remote area which was underneath a bridge. The defendant and his brother, Eugene, undressed the plaintiff. The other brother, Bill, stood as a lookout. The defendant removed his erect penis from his pants and laid on top of the plaintiff with his penis touching the plaintiff’s vagina. At the time, the defendant talked dirty to the plaintiff saying things such as ‘this is how you make a baby’.
While the defendant denies knowing or ever meeting the plaintiff at any time prior to 2015, the plaintiff’s sister, Miriam Wardle, who is 11 years older than the plaintiff, has provided a statement confirming that the plaintiff was taken to the Connellans in Nepean Highway, Elsternwick sometime after their father passed away, in order to give their mother a break. Ms Wardle asserts that she knows that the plaintiff was taken to the Connellans in Nepean Highway Elsternwick because she still has ‘the address book from this time which contains the names and details of these people’.
Police investigation
Following the making of her statements, police interviewed the defendant and his brother William. Contrary to the plaintiff’s statements, William is the defendant’s younger brother, having been born on 7 September 1957, almost three years after the birth of the defendant. For the sake of completeness, we interpolate here that if the plaintiff’s recollection in her August 2013 statement to police is correct that, while she was being assaulted under the bridge, ‘the older Conlan boy’ (while doing nothing to protect her) was ‘uncomfortable with the situation’ then the plaintiff’s recollection that it was the defendant who assaulted her on that occasion must be wrong.
On interview, both the defendant and his brother denied any knowledge of the plaintiff or of her staying with their family in 1968. William stated that he recalled an Aboriginal boy staying with the family in the 1960s. He thought his name was Eugene. Both the defendant and his brother denied ever sexually assaulting or being a party to the sexual assault of, any person.
Police attempted to positively identify Eugene. Their enquiries revealed that Eugene was possibly Eugene Samuel Lovett, born on 9 October 1954. Mr Lovett was eventually interviewed by police. Mr Lovett denied that he ever sexually assaulted anyone. Mr Lovett was asked whether he ever lived with a family by the name of the Connellans in the 1960s. He said that he could not recall anyone by that name. Mr Lovett admitted, however, that he lived with a white family in the ‘60s on Nepean Highway, Elsternwick. When asked about the plaintiff and the two Connellan brothers, Mr Lovett explained that ‘he did not know those people and that it was a long time ago’.
Further investigation by the police disclosed that other witnesses who may have been able to assist with the investigation had passed away, including the plaintiff’s mother and the defendant’s parents.
The plaintiff’s explanation for not commencing proceedings at an earlier time
The plaintiff sent her August 2013 statement to police under cover of a letter dated 15 August 2013. In the letter, the plaintiff stated:
Please find enclosed my written statement as requested when we met Tuesday.
The things I need to add to this are reasons that I should finally ‘DO’ something about events of so many years ago. Mainly out of respect to my mum I promised myself I would never bring it up while she was alive. She did nothing wrong in this situation. It was really out of her hands at a time when she could not physically cope. She passed away five years ago.
The reason given by the plaintiff in the letter for not commencing a proceeding at an earlier time, however, is not entirely consistent with her statement concerning the correspondence between her mother and the Connellans referred to in the August 2013 statement. Further, part of the evidentiary material tendered before the primary judge included the plaintiff’s answer to an interrogatory[3] in which the plaintiff swore:
I first disclosed the abuse I had suffered to my mother at some point during my childhood which I am now unable to recall.
[3]Interrogatory 8.
The defendant’s application for a permanent stay
By an application filed 19 December 2016, the defendant applied for an order that the proceeding be permanently stayed:
(a) as an abuse of process; or
(b)because the defendant’s conduct of his defence has been irretrievably prejudiced by reason of the delay in the proceeding being brought after nearly five decades since the incident is [scil, incidents are] alleged to have taken place.
In his written submissions at first instance, the defendant identified grounds upon which a permanent stay might be ordered. One of the grounds identified was ‘where the administration of justice may be compromised’. In his submissions in support of his application, the defendant referred to well-known authorities dealing with the principles to be applied on an application for a permanent stay, including Jago v The District Court of New South Wales[4] and Batistatos v Roads and Traffic Authority of New South Wales.[5]
[4](1989) 168 CLR 23 (‘Jago’).
[5](2006) 226 CLR 256 (‘Batistatos’).
As reasons for staying the plaintiff’s proceeding, the defendant pointed to difficulties dealing with both the issue of liability and the issue of quantum. The plaintiff’s claim is that she continues to suffer from a post-traumatic stress disorder caused by the incidents. The defendant submitted that the task of investigating the extent of any such condition and questions of causation had become much more difficult because of the long elapse of time. In his written submissions on the hearing of the application before the primary judge, after referring to quantum, the defendant submitted:
Regardless, it is difficult to think of cases that could have a greater effect on a defendant than being asked to defend an allegation of rape. The stakes are high which, on the principles espoused … in Batistatos, makes the perception of an unfair trial even more acute.
The principal issue for the court to determine is whether the conduct of the defence has been prejudiced by the extraordinary delay and — if so — whether the conduct of the defence has been made more complicated and difficult such that it would be unfair on the defendant to proceed.
As to the effect of the elapse of time on memory, the defendant submitted:
Apart from the general question of the reliability of a witness to recall events when the witness was a very young child, after such an extraordinary interval of time the memory of even an honest or otherwise reliable witness may become contaminated.
The defendant also submitted that the opportunity to speak to potential witnesses was now gone. Those witnesses included the plaintiff’s family doctor, friends or family members who might be able to give relevant evidence about the plaintiff’s circumstances. Moreover, it was submitted that the defendant had been denied the opportunity of calling his own parents to give evidence about relevant matters such as whether the plaintiff ever stayed at the Connellan home, and the circumstances of any such stay, or any relevant observations they might have made which might throw light on the allegations made by the plaintiff or the circumstances surrounding them. Similarly, the possibility of investigating what if any correspondence passed between the plaintiff’s mother and the Connellans, as referred to in the plaintiff’s statement to police made in August 2013, has now disappeared.
In oral argument before the judge, the defendant submitted that the plaintiff’s explanation, for not having sued earlier because she did not want to raise the matter while her mother was still alive, was a relevant matter to be taken into account in determining whether the proceeding should be stayed.
The judge’s reasons
The judge commenced her reasons for judgment by identifying the bases upon which the defendant sought a permanent stay (‘an abuse of process and/or because the defendant has been irretrievably prejudiced by reason of the delay in the proceeding being brought’).[6] The judge then encapsulated the issue in the following terms:
The defendant seeks to rely upon s 27R of the Amending Act, which provides that the Court retains its power to summarily dismiss or permanently stay a proceeding where the lapse of time has a burdensome effect on the defendant that is so serious, that a fair trial is not possible.[7]
The judge then set out the relevant background facts, the legislative history of s 27R and the parties’ submissions. In the course of setting out the defendant’s submissions, the judge recorded that the defendant had submitted that the term ‘burdensome’ contained in the example in s 27R ‘should be given its ordinary meaning, namely that the conduct of the defence by the defendant has been rendered more complicated and difficult [by the lapse in time]’.[8]
[6]Reasons [1].
[7]Ibid [5].
[8]Ibid [52].
Under the heading ‘Section 27R and its example’, the judge said:
Section 27R confirms the Court's power to permanently stay proceedings and provides, by way of example, that such power is not limited where the lapse of time has a ‘burdensome’ effect on the defendant that is so serious that a fair trial is not possible.
I am satisfied that I should approach my analysis in this instance on the basis that the primary object of statutory interpretation is to construe the relevant provision such that it is consistent with the language and purpose of all the provisions of the statute. To assist me in the construction of this section and its application to Rule 23.01, it is appropriate to consider the text, context and purpose of the example within the Amending Act.
The Interpretation of Legislation Act 1984 (Vic) states that an example to a provision is not intended to be exhaustive and that it may extend, but does not limit the meaning of the provision.
The wording of s 27R and its example need to be considered in the context of Parliament's action in abolishing limitations defences in historical sexual assault claims. The purpose of the Amending Act is clearly to provide greater access to justice for survivors of child abuse. The Act was passed in recognition of the difficulties such victims face in bringing claims at an earlier time, due to the debilitating and confusing effects which child abuse can have upon a young child.
It needs to be recognised that the blanket abolition of the limitations defence allows for the potential bringing of claims in relation to an event occurring many years ago, in the presence of overwhelming prejudice to the defendant.
For example, an alleged perpetrator may now be dead or suffering from advanced ageing or mental infirmity. Further, a defendant, by the passage of time, may be denied the opportunity to adduce evidence from eye witnesses to the alleged assault.
I consider that s 27R and its example were enacted in recognition of such risks.
I do not accept [counsel for the defendant’s] submission that the term ‘burdensome’ should be given an ordinary meaning, such that it requires only that the conduct of proceedings by a defendant be rendered more complicated and difficult by the lapse of time. Such a construction would likely shut out the vast majority of victims of child sexual abuse from accessing justice, and would produce a result that was clearly contrary to the intention of the Amending Act.
,There are many cases in which plaintiffs have been granted an extension of time under the Limitations Act, and in which the lapse of time has made such cases more complicated and difficult for the defendant. However, notwithstanding such general prejudice, and, on occasion, specific prejudice, courts have still granted an extension of time on the basis it was nevertheless ‘just and reasonable’ to do so.[9]
[9]Ibid [67]–[74] (citations omitted, emphasis added).
Under the heading ‘Is the defendant’s prejudice so great that a fair trial is not possible?’, the judge then concluded her analysis:
Whilst I am bound to apply the principles espoused by the majority of the High Court in Batistatos, I consider the facts and pleadings in that case to be very different to those in the case before me. Batistatos was a negligence case, with no eye witnesses and in which critical documents were no longer available. This is a sexual assault case, in which key witnesses, namely the plaintiff, the defendant, his brother William, and Eugene Lovett are all alive and able to give evidence. As witnesses to the alleged second sexual assault, I consider this allows the plaintiff’s allegations to be tested and the factual dispute between the parties to be fairly determined at trial.
[Counsel for the defendant] indicated that there are discrepancies in the plaintiff’s case, such as the way in which she came to stay at the defendant's home, the nature of the abuse, and who she first complained to and when.
I consider the discrepancies in the plaintiff’s claim, as identified by [defence counsel], are matters that may be explained by the plaintiff’s age at the time of the alleged abuse, the trauma she may have suffered, and the passage of time.
Such matters are best tested in viva voce evidence. The plaintiff may be able to credibly explain such discrepancies, or she may not. How the plaintiff fares as a witness is not relevant to the application before me.
[Counsel for the defendant] submitted that there is no admissible corroborating evidence. [Counsel for the plaintiff] made no submissions in relation to this. Ultimately, I consider the admissibility or non-admissibility of evidence to be a matter for the trial judge and, in any event, do not consider it to be a matter of relevance in the application before me.
In determining this matter, I accept that the defendant has suffered general prejudice from the lapse of time. I accept that he has been denied the opportunity to adduce alibi evidence or direct evidence as to his whereabouts at the time the plaintiff came to stay at his family's home. There may be other matters that he could have relied upon which he cannot now recall or call evidence of. I am also satisfied the defendant suffers some prejudice arising from the death of his parents.
However, such prejudice must be seen in light of the available evidence, namely, that all persons who were present when the alleged second assault occurred are available to give evidence. This is the key factor in leading me to conclude that, notwithstanding the lapse of time, the defendant's prejudice is not so serious that a fair trial is not possible.
I therefore refuse the defendant's summons to permanently stay the proceedings.[10]
[10]Ibid [75]–[81] (emphasis added).
The authorities
Abuse of process authorities
In the last 30 years, the High Court has had a number of occasions to consider the concept of abuse of process and the circumstances in which particular proceedings might be permanently stayed. In Jago, Gaudron J said:
[A]t least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand.[11]
[11]Jago (1989) 168 CLR 23, 74.
In the same case, Mason CJ referred to differences between civil and criminal cases as follows:
In particular, the criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context. However, for the purpose of applying the principles of abuse of process, the distinction to be drawn between criminal and civil proceedings is not a rigid and inflexible one. It is the nature of the proceedings, not their formal classification, that is important.[12]
[12]Ibid 26 (citation omitted).
In Williams v Spautz,[13] the plurality[14] said:
It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is ‘a heavy one’, to use the words of Scarman LJ in Goldsmith v Sperrings Ltd and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances.[15]
[13](1992) 174 CLR 509 (‘Williams’).
[14]Mason CJ, Dawson, Toohey and McHugh JJ.
[15]Williams (1992) 174 CLR 509, 529.
In Walton v Gardiner,[16] the plurality[17] said:
The inherent jurisdiction of a superior court to stay its own proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus it has long been established that regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case … [is correctly described] … as ‘the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people’.[18]
[16](1993) 177 CLR 378 (‘Walton’).
[17]Mason CJ, Deane and Dawson JJ.
[18]Walton (1993) 177 CLR 378, 392–3 (citations omitted) (emphasis added).
In the same case, the plurality cited, with approval, the passage in Gaudron J’s judgment in Jago extracted above.[19] Their Honours then went on to say that a careful examination of the authorities showed that they did not support the proposition that a permanent stay could only be awarded on the ground of either improper purpose or no possibility of a fair hearing.[20]
[19]Ibid 394.
[20]Ibid 395.
In R v Carroll,[21] Gaudron and Gummow JJ discussed the question of whether the power to stay a proceeding as an abuse of process was discretionary. Their Honours said:
The power to stay is said to be discretionary. In this context, the word ‘discretionary’ indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration. If so, the appellate court may reach its own decision in substitution for that of the primary judge, where there are before it the materials for so doing.[22]
[21](2002) 213 CLR 635 (‘Carroll’).
[22]Carroll (2002) 213 CLR 635, 657 [73] (citation omitted).
The decision of central importance in the present case is Batistatos.[23] Batistatos was a case involving a claim for damages in respect of severe injuries (quadriplegia) suffered as a result of an accident 29 years before proceedings were commenced. The plaintiff’s claim was brought against the Roads and Traffic Authority of New South Wales and the Newcastle City Council, alleging negligence in the construction, maintenance and marking, lighting and signage of the road where the accident occurred. The case proceeded on the basis that the plaintiff was a person under disability, resulting in the limitation period that would otherwise have been applicable being suspended, subject to an ultimate limitation period of 30 years.[24]
[23](2006) 226 CLR 256.
[24]See ss 51 and 52 of the Limitation Act 1969 (NSW).
In Batistatos, the defendants sought to have the proceeding dismissed or permanently stayed, or struck out as an abuse of process. The defendants were unsuccessful at first instance. In the NSW Court of Appeal, the defendants’ appeal was allowed, and orders were made staying the proceeding permanently.
The plaintiff appealed to the High Court. The Court commenced its analysis by citing the majority in Walton with approval, in the following terms:
In Walton v Gardiner, the majority, Mason CJ, Deane and Dawson JJ, accepted as correct the passage in Hunterin which Lord Diplock spoke of ‘the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people’. His Lordship went on to describe as ‘very varied’ the circumstances where ‘abuse of process’ can arise. It will be necessary to return to that consideration later in these reasons.[25]
[25]Batistatos (2006) 226 CLR 256, 264 [6].
In discussing what amounted to an abuse of process, the plurality then cited McHugh J’s observations in Rogers v The Queen,[26] as follows:
[26](1994) 181 CLR 251, 286.
Earlier, in Rogers v The Queen, McHugh J observed:
Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.
His Honour added:
Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.
To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court.[27]
[27]Batistatos (2006) 226 CLR 256, 267 [15].
In analysing the effects of the lapse of time on the plaintiff’s claims in Batistatos, the plurality said:
It is useful to note the effects of the lapse of time relied upon by the defendants in support of the contention that a fair trial was no longer possible. In their written submissions before this Court, these related generally to the deterioration of the evidence and encompassed six broad grounds: (1) the inability to obtain any police records of investigations relating to the accident; (2) the inability to locate hospital or medical records concerning the plaintiff's treatment before 1980; (3) neither the Council nor the RTA had most of the documents relevant to the design and construction of Fullerton St for the period from 1965 to 1980; (4) difficulty in identifying and locating any person who had active involvement in road maintenance work in and before 1965 who could give evidence of considerations affecting design and construction; (5) the inability to locate any record that could assist in proving the insurer on risk at the relevant time; and (6) the physical state of the road where the accident occurred had altered substantially due to a reconstruction of Fullerton St carried out by the Council in or about 1985 eliminating the bend which the plaintiff had alleged caused the accident (such evidence as remains regarding the reconstruction not bearing on establishing the signage, vegetation, lighting or other relevant circumstances at the time of the accident). The first four grounds were considered in detail by Hoeben J, whereas the latter two (while raised before Hoeben J) assumed greater significance before the Court of Appeal.[28]
[28]Ibid 273 [37].
The plurality then referred to the leading judgment given in the Court of Appeal by Bryson J, saying:
The critical holding by Bryson JA appears in the sentence:
No more than a formal enactment of the process of hearing and determining the plaintiff's claim could take place; it cannot be expected that the process would be just.
Bryson JA also stated:
To my mind the simple and overwhelmingly clear position is that no useful evidence is available upon which to conduct a trial into the question whether the plaintiff's injuries were caused by negligence of the defendants, and no further search or inquiry is in any way likely to locate any such evidence; so that a trial of the proceedings could not rise above a debate about the effect of scraps of information, and it is impossible to inform the debate with any realistically useful information.[29]
[29]Ibid 278 [55].
In concluding that there was no error in the Court of Appeal’s judgment, the plurality in Batistatos said:
[I]n the circumstances of the present case, attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time. The Court of Appeal held that this was so serious that a fair trial was not possible. The result was that to permit the plaintiff’s case to proceed would clearly inflict unnecessary injustice upon the defendants.
What Deane J said in Oceanic Sun Line Special Shipping Company Inc v Fay, with respect to the staying of local proceedings, is applicable also to a case such as the present one. His Honour emphasised that there was no ‘requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff’; what was decisive was the objective effect of the continuation of the action.
In assessing that effect, there must be taken into account the consideration expressed by Dixon J in Cox v Journeaux [No 2] and set out earlier in these reasons.[30] Bryson JA in terms did so. He went on to remark in that connection that the defendants had not shown that the plaintiff’s action was ‘clearly without foundation’. But, he concluded that there was ‘in practical terms nothing of utility to place in the balance against the defendants’ claim for a permanent stay’.[31]
[30]At [53] of their reasons, the plurality set out Dixon J’s statement as follows:
A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.
[31]Batistatos (2006) 226 CLR 256, 281–2 [69]–[71] (citations omitted and footnote added).
Finally, in Michael Wilson & Partners Limited v Nicholls,[32] the plurality[33] said:
It has long been recognised that the term ‘abuse of the process of the court’ may be used in different senses. …
As the majority pointed out in Batistatos v Roads and Traffic Authority (NSW), ‘[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories’. In Ridgeway v The Queen, Gaudron J noted that the concept extended to proceedings ‘instituted for an improper purpose’, and to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’. In Rogers v The Queen, McHugh J concluded that, although the categories of abuse of process are not closed, many cases of abuse can be identified as falling into one of three categories: ‘(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute’.[34]
[32](2011) 244 CLR 427 (‘Michael Wilson’).
[33]Gummow ACJ, Hayne, Crennan and Bell JJ.
[34]Michael Wilson (2011) 244 CLR 427, 452 [88]–[89] (citations omitted).
Authorities concerning the effects of delay on memory and the quality of justice
It is well recognised that delay (or, perhaps more neutrally, a substantial elapse of time) can have effects on both memory and the quality of justice. The effect of delay on memory was one of the issues in Longman v The Queen.[35] The effect of delay on the quality of justice was one of the issues in Brisbane South Regional Health Authority v Taylor.[36]
[35](1989) 168 CLR 79 (‘Longman’).
[36](1996) 186 CLR 541 (‘Brisbane South’).
In Longman, the accused was charged with two sexual offences allegedly committed more than 20 years before trial. The complainant was six years old at the time of the first alleged offence and 10 years old at the time of the second alleged offence. McHugh J said:
The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person’s ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from a person’s own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine.
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely … Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. …
To the potential for error inherent in the complainant’s evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant’s testimony.[37]
[37]Longman (1989) 168 CLR 79, 107–8.
Brisbane South was a case involving an application to extend a limitation period to bring an action for personal injuries. The plaintiff’s alleged cause of action arose in 1979. In 1994, the plaintiff commenced an application for an extension of the limitation period applicable to her claim. The primary judge refused the application. An appeal by the plaintiff to the Queensland Court of Appeal was allowed. The defendant then appealed to the High Court. The appeal was allowed. In agreeing that the appeal should be allowed, McHugh J said:
The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.[38]
[38]Brisbane South (1996) 186 CLR 541, 551.
The problems inherent in meeting allegations about events alleged to have occurred many years ago, involving children, were summarised by Nicholson J in R v Jacobi.[39] Jacobi was a case involving allegations of indecent assault and unlawful sexual intercourse by three complainants who were variously aged between 11 and 14 years, six and 13 years and 10 and 13 years at the time of the alleged offences. The events giving rise to the charges were said to have occurred between 23 and 36 years before proceedings were issued. In summarising the problems faced by the appellant in that case, Nicholson J said:
The appellant will face the problems inherent in meeting allegations about events said to have occurred many years ago, involving quite young children. These problems include:
(a)the reliability or the accuracy of a complainant’s recollections about which evidence is given so many years after the events;
(b)the difficulty confronting a trier of fact when assessing the veracity and reliability of a person, not by hearing and observing their evidence given when young, soon after the events are said to have taken place and with the child’s contemporary language and understanding but after hearing and observing evidence given in the language of an experienced adult with all of the possibilities of reconstruction and re-interpretation that this entails;
(c)the difficulty confronting the appellant having to go well back in time to recall, check and verify the accuracy of events about which evidence is given; and
(d)the difficulty confronting the appellant in endeavouring to obtain and produce documentary evidence or oral evidence from other witnesses which might put in question the evidence of a complainant as to events, times and places.[40]
[39](2012) 114 SASR 227 (‘Jacobi’).
[40]Jacobi (2012) 114 SASR 227, 253 [104].
Applicant’s submissions
While the applicant’s application for leave to appeal and written case identified six proposed grounds of appeal, in oral argument the applicant made three broad complaints in respect of the primary judge’s decision. First, the applicant submitted that the judge wrongly limited herself to the discrete question of whether the trial would be unfair, and did not conduct the broader evaluative process needed to determine whether there was an abuse of process. In support of this submission, the applicant contended that the judge ‘elevated the example in s 27R of the Act into the test to be applied to determine whether there should be a stay’.
Secondly, the applicant submitted that the judge failed to consider appropriately the matters relevant to determining whether there should be a stay. These matters included the nature of the allegations made in the proceeding (rape), the loss of relevant witnesses (including all the witnesses who were adults at the time of the alleged events), the fact that the defendant was a child at the time of the alleged events, and the plaintiff’s reason for delaying the commencement of her proceeding.
Thirdly, the applicant submitted that the primary judge’s decision was plainly unjust and that the only reasonable decision open to the judge was one staying the plaintiff’s proceeding.
Respondent’s submissions
The respondent submitted that the applicant has not established any error made by the judge in the performance of her evaluative decision. The respondent contended that, contrary to the applicant’s submissions, the judge applied the correct test in accordance with the relevant High Court authorities. To the extent that the applicant established that the test stated by the judge in her reasons for judgment was different from that set out in a relevant authority, the respondent submitted that the test applied by the judge was the test contended for by the defendant at the hearing of his application.
Secondly, the respondent submitted that close attention to the judge’s reasons discloses that the judge took into account each of the matters relied upon by the plaintiff, including all of the matters about which the applicant now submits were not appropriately taken into account.
Finally, the respondent submitted that even if this Court took a different view about whether the proceeding should be stayed, it was not open to this Court to overturn the judge’s decision in the absence of specific error or unless the judge’s decision was plainly unjust or plainly wrong. The respondent submitted that, as no specific error had been established and the judge’s decision was not plainly wrong or unjust, the application for leave to appeal should be refused.
Analysis
In determining whether a proceeding should be stayed as an abuse of process, the authorities to which we have already referred disclose the following propositions:
1.In order to justify the grant of a stay, a defendant bears a heavy onus. A stay is ordinarily only granted in exceptional circumstances, because it effectively brings to an end litigation without adjudication.[41]
2.The categories of abuse of process are not closed.[42]
3.In particular, the concept of an abuse of process is not confined to cases in which, if the action were to proceed, the defendant would not receive a fair trial.[43]
4.The fundamental test is whether, in the circumstances, the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people.[44]
[41]Williams (1992) 174 CLR 509, 529.
[42]Walton (1993) 177 CLR 378, 392-5; Batistatos (2006) 226 CLR 256, 264 [6], 265 [9] and 267 [15].
[43]Walton (1993) 177 CLR 378, 395.
[44]Walton (1993) 177 CLR 378, 395; Batistatos (2006) 226 CLR 256, 264 [6].
The primary judge was required to determine whether, having regard to all of the circumstances (including the seriousness and importance of the issues in dispute), it would be manifestly unfair, or would otherwise bring the administration of justice into disrepute, to permit the plaintiff’s proceeding to proceed.[45]
[45]Walton (1993) 177 CLR 378, 393.
At one level it could be said that there can be a fair trial of the present proceeding because there is no real suggestion that the principal protagonists (the plaintiff, the defendant, the defendant’s brother and Mr Lovett) are not all available to give evidence. Moreover, at the trial, each of the witnesses will have the opportunity to give evidence of relevant events and to accept or deny propositions put to them. That, however, is to take too narrow an approach to the question that was required to be determined by the defendant’s stay application.
In the present proceeding, the defendant is being asked to defend himself at the age of 62 for actions he is alleged to have committed as a 13 year old in respect of a person he can only have known (on the plaintiff’s case) for little more than a week. The burdensome and oppressive nature of that task is manifest. The task is made more oppressive by the fact that, by reason of the substantial elapse of time, neither side is in a position to investigate (or call evidence about) relevant surrounding circumstances and events. Further, the vagueness of the plaintiff’s own recollection of surrounding circumstances makes the investigation and defence of her allegations even more problematic.
It is not merely the difficulty associated with investigating and defending the plaintiff’s allegations of sexual assault that makes this proceeding unjustifiably oppressive: there are also significant issues of causation and quantum, the investigation of which has been made more difficult by the substantial elapse of time. The plaintiff’s case is that she now suffers (and has suffered for many years) from a chronic post-traumatic stress disorder. The investigation of how and when this condition commenced and developed and its potential causes is now largely (if not wholly) precluded. Large parts of the plaintiff’s history upon which conclusions on the issues of causation and quantum might be founded will now be dependent upon little more than the plaintiff’s assertions of her subjective recollection of events to which she now attributes importance.
In the context of this case, the judge was, in our view, in error in considering that it was a ‘key factor’ that the defendant, his brother and Mr Lovett are ‘available to give evidence’.[46] Equally, the judge’s acceptance that the defendant suffered ‘some prejudice’ due to the death of his parents, and that he had suffered ‘general prejudice’ from the lapse of time,[47] understates the significance of the effects of the substantial delay in this case. Specifically, those two propositions fail to take into account a number of factors, including the following:
[46]Reasons [80].
[47]Ibid [79].
1. The defendant is now being asked (as we have already said, at the age of 62 years) to remember something he is alleged to have done at the age of 13 years. That is, the trial would be based on childhood memories from long ago.
2. The value of the evidence of the defendant’s brother will be similarly affected.
3. There is some doubt as to whether the ‘Eugene Lovett’ identified by the police is the same person referred to by the plaintiff. Any evidence given by him would, at the very least, be of doubtful value.
4. Critically, the defendant’s mother is not alive. She potentially could have been an important witness, including as to the following: whether the plaintiff did stay with the defendant’s family at, and for, the time alleged; if so, whether the Aboriginal boy Eugene was also staying there; the type of supervision that was provided to the plaintiff; in relation to the second incident, whether she ever asked the three boys to take the plaintiff (a seven year old girl) to the beach; whether the plaintiff is correct in recalling being reprimanded by her over the use of a radio on her first night at the Connellan home; whether she noted anything untoward in the conduct of the plaintiff; and whether there was a swing in the backyard of the home.
5. The plaintiff’s mother is no longer alive. She would have been an important witness as to a number of matters, including whether the plaintiff was placed with the defendant’s family, the plaintiff’s demeanour on her return from her stay, and whether the plaintiff ever did make any complaint to her about an alleged sexual assault or sexual assaults by the defendant.
6. The defendant’s house has now been destroyed. If the house had not been destroyed, it would have been possible to test the plaintiff’s allegations about whether she in fact stayed there by reference to its physical characteristics. That opportunity has now been lost. Further, it is now no longer possible to meaningfully test the plaintiff’s allegation that the first sexual assault took place ‘in a swing plane hanging from a tree’ (plaintiff’s statement to police in August 2013) or in bushes where the plaintiff and the defendant could not be seen (as pleaded by the plaintiff in her statement of claim). Additionally, it is no longer possible to test the plaintiff’s recollection of relevant surrounding circumstances (including the assaults alleged to have been perpetrated on her by ‘Eugene’) by reference to the layout of the defendant’s home and the location of bedrooms and other points of reference. It cannot be doubted that, if the house still existed, the layout and various locations of particular rooms would have provided fruitful avenues for cross-examination of the plaintiff to test the reliability of her evidence on some of the critical elements of her allegations against the defendant.
Having regard to the elapse of time, the deaths of the plaintiff’s mother and the defendant’s parents and the loss of any evidence of surrounding circumstances that may have critically affected the determination of the central issues in dispute between the parties, to borrow from Bryson JA’s description of the plaintiff’s claim in Batistatos, ‘no more than a formal enactment of the process of hearing and determining the plaintiff’s claim could take place; it cannot be expected that the process would be just’.[48]
[48]Batistatos (2006) 226 CLR 256, 278 [55].
Additionally, in determining whether it would be unjustifiably burdensome on the defendant to now have to defend himself in respect of events alleged to have occurred so long ago, it is relevant to look at the plaintiff’s reasons for not commencing proceedings at an earlier point in time. The plaintiff has said that she did not raise the matter until 2013 because, out of respect to her mother she promised herself that she would never bring the matter up while her mother was alive. There are two difficulties with this explanation: first, the explanation is inconsistent with the plaintiff’s statement to police in 2013, in which she said that her mother wrote to ‘Mrs Conlan’ with an account of what had occurred and that a reply was received from ‘this woman’ in which it was stated that the plaintiff ‘knew all about sex anyway’; and secondly, the plaintiff’s reason does not explain why she waited five years after her mother died.
There is force in the defendant’s submission (made in support of ground 1) that the judge approached her task on too narrow a basis, namely that of merely looking at whether a fair trial was, in all the circumstances, possible. As the authorities show, in order to determine whether a stay should have been granted, it was also necessary to examine whether there was unjustifiable unfairness in requiring the defendant to defend himself in respect of the plaintiff’s allegations now made almost 50 years after the alleged events (remembering that all adult witnesses are now dead and that the defendant, the plaintiff, the defendant’s brother and Mr Lovett were all children at the relevant time).
That said, there is also force in the plaintiff’s submission that the matters put to this Court were not put to the primary judge by the defendant’s senior counsel[49] with the same clarity as they were put to this Court. In the end, however, it is not necessary for us to resolve these competing contentions.
[49]Not senior counsel who appeared in this Court.
Reasonable minds might differ as to whether it is unjustifiably burdensome to allow a proceeding of the present kind to continue. The mere fact that an appellate court might take a different view from the primary judge on such an issue is not, however, a basis for overturning the primary judge’s conclusion. In the absence of specific error by the primary judge, in order to overturn the primary judge’s conclusion, what must be shown is that the decision was plainly wrong or plainly unjust.[50]
[50]Cf House v The King (1936) 55 CLR 499, 505.
In the present case, and in the light of the specific facts of this case, we are of the view that it would be plainly unjust to permit the plaintiff’s proceeding to continue. The defendant cannot realistically be expected to defend a cause of action that is alleged to have accrued almost five decades ago in circumstances where so little is known about the surrounding circumstances and facts, and all of the principal witnesses who were adults at the time are now dead. A trial of the plaintiff’s allegations would be one that proceeded on a very unsure footing with mere scraps of evidence, the reliability of which must seriously be doubted, being tendered and relied upon. As genuine as the plaintiff’s recollections might be, it would be unjustifiably burdensome to require the defendant to now attempt to defend allegations made against him as a child so many years ago
It follows that in our view, and with respect to the judge’s careful analysis in her reasons for judgment, the complaints made by the defendant under grounds 2, 5 and 6 must be upheld. While the onus borne by the defendant was a heavy one, in the exceptional circumstances of the specific facts in this case we are of the opinion that it has been discharged, and the defendant is thus entitled to a permanent stay of the plaintiff’s proceeding.
Application to treat the file as confidential
On 31 March 2017, the defendant filed an application seeking orders that the parties be referred to by pseudonyms and that the Prothonotary be ordered to treat the court file in this proceeding, and each document in it, as confidential and not produce them for inspection by any person not a party to the proceeding.[51]
[51]Cf Rule 28.05(2) of the Supreme Court (General Civil Procedure) Rules 2015.
After the exchange of written submissions between the parties, the defendant abandoned his application for an order that the parties be referred to by pseudonyms. At the hearing of the application for leave, the defendant submitted that this Court should make the order sought in relation to the confidentiality of the file and the documents on it. The defendant’s application was advanced on the following grounds:
(a) first, the plaintiff’s allegations are untested, unproved and denied, and publication of them to third parties will likely damage the reputation of the defendant, cause embarrassment, and otherwise be detrimental to him; and
(b) secondly, the publication of documents and the plaintiff’s untested and unproven allegations has the capacity to prejudice the fair trial of the proceeding, in circumstances where the trial is currently fixed for hearing in October this year before a judge and jury.
In argument, counsel for the defendant accepted that if this Court made orders resulting in the permanent staying of the plaintiff’s proceeding then there would be no reason in law for ordering that the file or its documents be confidential.
Many court files contain documents in which allegations damaging to the reputation of other parties are made. The mere fact that a file contains documents in which contested allegations, that might cause reputational damage, are made is not a ground for ordering that the file or such documents be confidential.
Having regard to the conclusion we have reached in relation to the application for leave to appeal and appeal, it is not necessary for us to consider whether, in the event that we had come to different conclusions, the existence of a jury trial scheduled to be heard in five months would have been a sufficient basis for ordering the file and its documents to be confidential. It is sufficient to say that, in the light of the orders we will make, there is no basis for making the confidentiality order sought by the defendant.
Orders
There will be orders granting the defendant leave to appeal and allowing the appeal. The orders of the primary judge will be set aside and in lieu thereof it will be ordered that the plaintiff’s proceeding be permanently stayed.
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