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Estate Judd v McKnight (No 4)

Estate Judd v McKnight (No 4)

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Case Copied 5 October 2018 51 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd (No.4) [2018] NSWSC 1489
Hearing dates: 1 December 2017, 31 July 2018, 2 August 2018
Date of orders: 05 October 2018
Decision date: 05 October 2018
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Proceedings 2017/278663, commenced by Summons filed 13 September 2017 are dismissed.
(2) The plaintiffs, as executors of the Estate of the late Roy Donald Judd, are to pay the costs of the proceedings.

Catchwords:
LIMITATION OF ACTIONS – personal injury – claims against estate of alleged perpetrator for damages for alleged sexual assaults – delay in commencing claims – no limitation period – Limitation Act 1969, s 6A – whether proceedings should be stayed as an abuse of process
CIVIL PROCEDURE – application for permanent stay – abuse of process – categories of abuse of process not closed – claim brought in respect of events alleged to have occurred up to 40 years ago – whether it would be manifestly unfair to defendant or would otherwise bring administration of justice into disrepute if claim proceeded – public interest – where a number of avenues of enquiry remain available to the executors to defend the matter – permanent stay refused
CIVIL PROCEDURE – admissibility of transcripts of telephone conversation – lawful intercept warrant – where transcript tendered on a confidential basis – unnecessary to determine question of admissibility
Legislation Cited: Civil Procedure Act 2005
Crimes Act 1900
Crimes Amendment (Sexual Offences) Act 2003
Crimes (Amendment) Act 1984
Government Information (Public Access) Act 2009
Interpretation Act 1987
Limitation Amendment (Child Abuse) Act 2016 Limitation Act 1969
Surveillance Devices Act 2007
Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256;
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Connellan v Murphy [2017] VSCA 116
Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd (No.3) [2018] NSWSC 1479
Herron v McGregor (1986) 6 NSWLR 246
Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; (1982) AC 529
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Metropolitan Bank Limited v Pooley (1885) 10 App Cas 210
Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134
R v Edwards [2009] HCA 20; (2009) 255 ALR 399
R v Jacobi [2012] SASCFC 115; (2012) 114 SASR 227
R v McCarthy (NSWCCA 12 August 1994, unrep)
R v Stringer (2000) 116 A Crim R 198
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Trevor Athol Gorman and Ian Alexander Dunn as Executors of the Estate of the Late Roy Judd (P)

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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Details

Case: [2018] NSWSC 1489
Decision Date: 05 October 2018

CaseChat Overview and Summary

Estate Judd v McKnight (No 4) is a case where the estate of the deceased, Judd, is being sued by the plaintiffs for damages resulting from alleged sexual assaults by Judd. The case was heard in the Supreme Court of Queensland. The dispute primarily revolves around whether the plaintiffs' claims, initiated decades after the alleged incidents, should be permanently stayed due to an abuse of process. The court was also required to decide whether transcripts of telephone conversations, obtained under a lawful intercept warrant, should be admitted as evidence in the proceedings.

The legal issues before the court included the application for a permanent stay on the basis of abuse of process, the relevance of the Limitation Act 1969, s 6A, and the admissibility of the transcripts of the intercepted telephone conversations. The primary concern was whether it would be manifestly unfair to the defendant, or otherwise bring the administration of justice into disrepute, to proceed with the claims given the significant delay in bringing them. The court also needed to consider the public interest in allowing such delayed claims to proceed and whether there were other avenues for the executors to defend the matter.

The court found that the categories of abuse of process were not closed and considered the public interest in allowing the claims to proceed. It was noted that the events in question occurred up to 40 years ago, and despite the delay, there were still avenues available for the executors to defend the matter. The court held that the claims should not be permanently stayed as it would not be manifestly unfair to the defendant nor bring the administration of justice into disrepute. Additionally, the court deemed it unnecessary to determine the admissibility of the transcripts as they were tendered on a confidential basis and the outcome of the case did not depend on their inclusion.

The court refused to grant a permanent stay of the proceedings. The final orders of the court reflect this decision, ensuring that the claims against the estate of Judd may proceed despite the significant delay in bringing them.

Orders