Connellan v Murphy

Case [2017] VSCA 116


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:

  1. 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. 

  1. 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.

  1. 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…

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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.

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