GMB v UnitingCare West - [2020] WADC 165

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   GMB -v- UNITINGCARE WEST [2020] WADC 165
CORAM:   BOWDEN DCJ
HEARD:   23 NOVEMBER 2020
DELIVERED          :   22 DECEMBER 2020
FILE NO/S:   CIV 3645 of 2019
BETWEEN:   GMB
Plaintiff
AND
UNITINGCARE WEST
First Defendant
THE STATE OF WESTERN AUSTRALIA
Second Defendant

Catchwords:

Civil procedure - Stay application - Death of alleged principal tortfeasor - Allegations not made during principal tortfeasor's lifetime - No opportunity for the first defendant to investigate allegations during principal tortfeasor's lifetime - Stay granted

Legislation:

Limitation Act 2005 (WA)

Result:

Stay granted in favour of the first defendant

Representation:

Counsel:

Plaintiff	:	Mr J G M Fiocco with Ms A E Le Roux
First Defendant	:	Mr G P Bourhill
Second Defendant	:	Ms T Omer

Solicitors:

Plaintiff	:	Friedman Lurie Singh & D'Angelo
First Defendant	:	Clyde & Co
Second Defendant	:	State Solicitor's Office

Case(s) referred to in decision(s):

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Chalmers v Leslie [2020] QSC 343
Connellan v Murphy [2017] VSCA 116
Department of Health and Human Services v County Court of Victoria [2018] VSC 322
Drago v The Queen (1992) 63 A Crim R 59
Gorman v McKnight [2020] NSWCA 20
Jack Brabham Holdings Pty Ltd v Button (Minister of State for Industry Technology and Commerce) (1988) 85 ALR 640
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27
Moubarak by his tutor Coorey v Holt [2019] NSWCA 102
R v Edwards [2009] HCA 20
R v Harkin (1989) 38 A Crim R 296
SLJ v The Queen [2013] VSCA 193; (2013) 233 A Crim R 341
The Council of Trinity Grammar School v Anderson [2019] NSWCA 292
Walton v Gardiner (1993) 177 CLR 378
Ward v Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776
WCB v Roman Catholic Trust Corporation for the Diocese of Sale (No 2) [2020] VSC 639
Williams v Spautz (1992) 174 CLR 509
ZYX (pseudonym initials) v JD (pseudonym intials) [2019] WADC 164

BOWDEN DCJ:

The application

This is the first defendant's application to permanently stay proceedings against it.
The materials considered by me in this application were:
1.plaintiff's amended writ of summons of 14 February 2020;
2.first defendant's defence to re‑amended statement of claim of 14 April 2020;
3.affidavit of Ms Thomas of 10 August 2020 and 29 September 2020;
4.affidavit of Ms Blakey-Scholes of 19 November 2020;
5.affidavit of the plaintiff of 21 September 2020;
6.affidavit of Mr E of 20 November 2020;
7.plaintiff's outline of submissions and authorities; and
8.first defendant's outline of submissions and authorities.

Summary of reasons

The plaintiff says that between 1958 to 1961, whilst a resident of Mofflyn House, he was subject to child sexual abuse by a cottage mother and that the first defendant is civilly liable for that abuse.
The plaintiff did not make any allegations of child sexual abuse until September 2017 during the course of the Royal Commission into Institutional Responses to Child Sexual Abuse.
This is not a case of the first defendant carrying out an inadequate investigation into the allegations or transferring the cottage mother from one cottage to another or from one institution to another. The cottage mother died in 2012. Consequentially, neither the first defendant nor the cottage mother were ever confronted with the allegations whilst the cottage mother was alive.
The plaintiff claims that he should be able to pursue his claim against the first defendant for the acts of the cottage mother. The first defendant says that as the cottage mother died before the allegations were made it has been deprived of the ability to make a meaningful defence to the plaintiff's claim and a permanent stay should be granted.
This conflict between the plaintiff's right to pursue his civil claim and the rights of the first defendant to make a meaningful defence has arisen numerous times in recent years in other states.
In Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 the New South Wales Court of Appeal granted a stay as the alleged perpetrator was never confronted with the allegations before he suffered dementia and as a result of the dementia could not make a meaningful defence.
In The Council of Trinity Grammar School v Anderson [2019] NSWCA 292 the New South Wales Court of Appeal granted a stay in part because a former head of the preparatory school, the subject of the allegations, had died and the appellant was not in a position to make a meaningful defence against the allegations.
In Ward v Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776 the New South Wales Court of Appeal granted a stay in circumstances where the alleged abuser was a parish priest who had died in excess of 60 years before the proceedings were commenced and the defendants were not able to evaluate the plaintiff's claim as a result of the parish priest not being confronted with the allegations during his lifetime.
In Chalmers v Leslie [2020] QSC 343 a judge of the Queensland Supreme Court granted a stay because the alleged abuser suffered severe dementia and was unable to provide instructions and therefore unable to meaningfully defend the case.
In this case, for the more detailed reasons which follow, I take the exceptional step of granting a stay in proceedings as the first defendant is not able to carry out meaningful investigations into the claim and make a meaningful defence in circumstances where they are alleged to be responsible for the actions of the cottage mother committed some 58 years ago and the cottage mother had died before the allegations were made.

Factual basis of the action

The plaintiff was at various times between 1958 to 1961 a resident of Mofflyn House.
At that time, Mofflyn House was a child residential facility which consisted of a number of cottages. Each cottage had a house mother employed by the first defendant as its supervisor. It is not disputed that the first defendant was the appropriate party responsible for Mofflyn House: s 15D and s 15F of the Civil Liability Act 2002 (WA).
Based on the plaintiff's affidavit and statement to the Royal Commission of 2 November 2017 (affidavit of the plaintiff GMB‑7) he says that when he was nearly 6 years of age and residing at Mofflyn House, he was placed in Mum Moyne's cottage and required to bath daily.
During that process he says Mum Moyne
would soap us up and she would force slivers of soap up into our anus, it felt sharp and it hurt. As time passed the size of the soap pieces Mum Moyne would push up our rectums became bigger, much bigger and more painful.
(slivers of soap incidents).
He says that Mum Moyne later introduced him to some men at the Wesley Church who would take him back to their house in a semi‑rural area.
He says he was taken to these premises numerous times on weekends and school holidays. On the premises was a big hall with religious paintings, big candles and crosses. On the first occasion he slept at the premises nothing untoward occurred.
On the second last occasion he visited the premises he noticed a lot of blood coming from his bottom, when upon his return to Mofflyn House he went to the toilet and bath.
On the last occasion he visited the premises he woke in a different room to that which he went to sleep in. He got up and walked down the hallway and saw a group of people with different coloured cloaks and different type of animal heads over their heads. He was taken back to the room and given a pink horrid tasting medicine and the next thing he remembered he was back at Mofflyn House. When he later went to the toilet and bath blood poured out of his bottom.
The plaintiff had no other recollections of what happened to him at the premises. He later recognised one of the men who took him to the Wesley Church at his sports carnival.
Mr E says in his affidavit that he was a resident of Mofflyn House from the end of 1958 to 1961. He recalls one of the female carers being known as 'Mum Moy'. He says he was assaulted by her when she would make him stand up and soap him up and force slivers of soap into his anus whilst she was bathing him.
The first defendant denies that it employed a female carer with the surname Moyne but admits that it employed a female carer named 'Moy' from 1958 to 1961 and again from 1967 to 1985.
Ms Moy died in December of 2012 and she was in charge of one of the cottages and would have been referred to as 'Mum Moy'.
There is no doubt, and this is accepted by the first defendant, that the plaintiff's reference to Mum Moyne is quite capable of being a reference to Mum Moy, bearing in mind that a Ms Moy was employed at the time the plaintiff was at the facility, the similarity of the names and the age of the plaintiff at the time of the alleged incident.

What the materials reveal about Ms Moy's past conduct

From the materials provided in this application and taken at its highest for the plaintiff the allegations relevant to Ms Moy's conduct are as follows.
That whilst showering the plaintiff Ms Moy on numerous occasions would force slivers of soap into his anus. (Affidavits of the plaintiff and Mr E.)
Ms Moy introduced the plaintiff to some men at the Wesley Church who would take him back to their premises in a semi‑rural area where they, the plaintiff asks the court to infer, sexually abused him. (The affidavit of the plaintiff.)
On an unspecified date Ms Moy caught a male resident of Mofflyn House showing his private parts to the girls and she made him strip and stand in front of the window in the playroom. She told the other children to pinch and hit him so that he would learn his lesson. Ms Moy hit him with a piece of thick plastic on his bare seat, leaving red marks. (Affidavit of the plaintiff GMB‑15, letter from unknown person dated October of an unknown year.)
Between 1975 to 1977 a female resident of Mofflyn House advised Ms Moy that she was sexually assaulted by a male child resident and upon telling Ms Moy of the assault, Ms Moy slapped her face and told her to go away. When confronted with this allegation in 1995 by the former female resident and her sister, Ms Moy was taken back and surprised and told the sisters that she could not recall this incident. (Ms Blakey‑Scholes' affidavit RBS‑1, RBS‑2 and RBS‑4.)
In March 2001 the Western Australian Police Service made enquires of Mofflyn about the allegations made by the two sisters and asked for any information Mofflyn had in relation to Ms Moy. (Ms Blakey‑Scholes' affidavit RBS‑13.) There is no evidence that the police spoke to Ms Moy about those allegations.

The plaintiff's claims against the first defendant

By his amended writ dated 14 February 2020, the plaintiff sues the first defendant for 'the first sexual assaults' which he pleads constitute child sexual abuse. The first sexual assaults are particularised as the numerous occasions when he was sexually assaulted by Mum Moyne inserting slivers of soap in his anus.
The plaintiff says the first sexual assaults were intentional torts of assault and battery committed upon him and constitute child sexual abuse as defined by s 6A(1) of the Limitation Act 2005 (WA). He says the first defendant is liable on the basis that it:
(a)Is vicariously liable as the employer of Mum Moyne for the wrongful and intentional first assaults and child sexual abuse she committed.
(b)Breached its common law and Civil Liability Act duty of care to him by:
(i)causing or permitting Mum Moyne to engage in child sexual abuse;
(ii)failure to take any or any adequate steps to prevent the sexual abuse by Mum Moyne;
(iii)failure to provide or maintain safe living arrangements for the plaintiff when he was at Mofflyn House;
(iv)failure to take any or any adequate precautions for the safety of the plaintiff; and
(v)failure to take any or any adequate steps to ensure the plaintiff was not exposed to the risk of sexual abuse.
(c)Breached their occupier's liability duty of care as the occupier of Mofflyn House in the manner referred to in (i) - (iv) above.
(d)Breach their fiduciary duty of care owed to him in that the first assaults were committed by Mum Moyne with the knowledge and intention that the plaintiff was to be placed in the custody of members of the Wesley Church at various premises unknown to the plaintiff at which time he would be subject to sexual abuse by those members. The particulars of the breach are the same particulars referred to in (i) - (iv) above.

The legal principles applicable to granting a permanent stay of proceedings

Section 6A(2) of the Limitation Act provides that there is no limitation period in respect of a child sexual abuse action.
Child sexual abuse is defined to mean an act or omission in relation to a person when the person is a child that is sexual abuse.
Section 6A of the Limitation Act 2005 provides:
(2)Despite anything in this or any other Act, no limitation period applies in respect of a child sexual abuse action.
…
(5)This section does not limit -
(a)any inherent, implied or statutory jurisdiction of a court;
or
(b)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.
Note for this subsection:
For example, this section is not intended to 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.
Section 6A(5) of the Limitation Act preserves the court's power to safeguard the right to a fair trial notwithstanding the amendments to Limitation Act which removes any limitation for child sexual abuse. The court is not restricted from dismissing or staying proceedings where it determines that a fair trial is not possible.
Even where the plaintiff has a tenable case there remains a discretion to stay the proceedings. The exercise of that power is to be worked out on a case by case basis: Moubarakby his tutor Coorey v Holt.
The fundamental principle is that a plaintiff is entitled to have his action tried in court, subject to the inherent jurisdiction of a court to stay proceedings if the interests of justice so demand: Walton v Gardiner (1993) 177 CLR 378 [1] (Walton); Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 [2] (Jago) and Williams v Spautz (1992) 174 CLR 509 [3].
The law in relation to granting a permanent stay is not in dispute and was recently summarised in Moubarakby his tutor Coorey v Holt as follows:
70From a brace of decisions of the High Court between 1989 and 2006 (Jago; Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 (Spautz); Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 (Walton); Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 (Batistatos)), the following uncontroversial propositions may be derived:
(1)The onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant: Spautz at 529 (per Mason CJ, Dawson, Toohey and McHugh JJ);
(2)A permanent stay should only be ordered in exceptional circumstances: Jago at 31 (per Mason CJ), 76 (per Gaudron J); Spautz at 529 (per Mason CJ, Dawson, Toohey and McHugh JJ); Walton at 388 (per Mason CJ, Deane and Dawson JJ);
(3)A permanent stay should be granted when the interests of the administration of justice so demand: Jago at 30 (per Mason CJ), 74 (Gaudron J); Spautz at 520 (per Mason CJ, Dawson, Toohey and McHugh JJ); Batistatos at [12] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);
(4)The categories of cases in which a permanent stay may be ordered are not closed: Jago at 74 (per Gaudron J); Batistatos at [9] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);
(5)One category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive: Jago at 74 (per Gaudron J); Walton at 393 (per Mason CJ, Deane and Dawson JJ);
(6)The continuation of proceedings may be oppressive if that is their objective effect: Batistatos at [70] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);
(7)Proceedings may be oppressive where their effect is 'seriously and unfairly burdensome, prejudicial or damaging': Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197 at 247 (per Deane J); [1988] HCA 32 cited in Jago at 74 (per Gaudron J); Batistatos at [70] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);
(8)Proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party: Walton at 393 (per Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); and
(9)Proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people: Walton at 393 (per Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ).
The mere absence of documentary evidence, or the absence of a witness through death or incapacity, does not have the automatic consequence that a trial would be unfair, or that a permanent stay should be granted although in some circumstances they may: Moubarak [93].
Whilst minds may differ as to what facts constitute an abuse of process, if there is an abuse of process, then an order for a stay should be made: ZYX (pseudonym initials) v JD (pseudonym intials) [2019] WADC 164 (Sleight CJDC) (ZYX).
Courts take a different approach to the provision of a stay for abuse of process in civil cases, as opposed to cases of a criminal or quasi‑criminal nature: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, because the criteria for determining what amounts to injustice in a civil case will necessarily differ from those in a criminal context: Williams v Spautz; Jago (Mason CJ) and ZYX.
Generally, courts have been less inclined to grant a stay in civil proceedings compared with criminal proceedings: Jack Brabham Holdings Pty Ltd v Button (Minister of State for Industry Technology and Commerce) (1988) 85 ALR 640 [17] (Jack Brabham Holdings) and ZYX.

Some relevant cases

Every case, of course, must be dealt with in accordance with its own facts.
Reforms in response to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse have resulted in similar although not identical legislation to that under consideration being passed in the other states and territories: see Limitation Act 1985 (ACT) s 21C; Limitation Act 1981 (NT) s 5A; Limitation of Actions Act 1974 (Qld) s 11A; Limitation of Actions Act 1936 (SA) s 3A; Limitation Act 1974 (Tas) s 5B; Limitation of Actions Act 1958 (Vic) s 27O ‑ s 27R; and Limitation Act 2005 (WA) s 6A.
Some past cases involving allegations of sexual abuses and applications for stay of proceedings are detailed.
In Moubarak by his tutor Coorey v Holt (Bell P, Leeming JA & Emmettt JA in agreement) a stay was granted. The relevant issue was the objective effect of the delay on the fairness of the trial.
The appellant suffered from severe dementia and was said to have sexually assaulted his niece 42 years previously. Prior to the onset of dementia he was never confronted about the allegations by the plaintiff, or the police. There was no credible suggestion that documentary evidence may exist that would bear upon the likelihood of the alleged sexual assault having occurred. The appellant was unfit to give evidence or instructions during the course of the trial or for the purposes of a defence and the dementia was advanced at the time the proceedings were commenced. The fact the incident occurred 42 years ago and that other potential witnesses were dead or unavailable while by itself insufficient to grant a stay was a matter considered in collocation with the other matters. The very nature of the allegations in that there were no eyewitnesses meant the value of any inquires the defendant could or should have made were of extremely limited potential significance.

Bell P recognised that the plaintiff could be cross-examined to explore inconsistencies in her evidence but due to his mental condition the appellant was utterly in the dark about the allegations and unable to give instructions in relation to them. Bell P found that it would not be possible to obtain a fair trial whilst acknowledging that a fair trial was not the same as a perfect trial.
Leeming AJA concluded that a fair trial was impossible as Mr Moubarak could not speak, understand or communicate, let alone instruct or give evidence, in circumstances where decades had passed and he has never been confronted with the detail of the allegation.
In TheCouncil of Trinity Grammar School v Anderson a stay was granted. The respondent alleged that he was sexually assaulted from 1969 to 1976 by a teacher while he was at school. A complaint was made to the police in 1997 and proceedings were commenced 40 years after the alleged event. The central issue was not whether the alleged assaults occurred (the teacher had been convicted and sentenced) but whether the defendant was vicariously liable or owed a non‑delegable duty of care. The principal ground for the stay was that a key witness, the head master of the preparatory school had died and that documents could not be located.
The critical question was whether the school could meaningfully contest the claim or whether the proceedings were unjustly oppressive to the defendant or, whether having regard to the position of the defendant, the continuation of the proceedings would bring the administration of justice into disrepute.
To answer these questions it was necessary to focus on the particulars of the statement of claim by reference to the specific allegations pleaded, the causes of actions relied upon and the particulars of the breach of duty.
The court pointed out that the claim for vicarious liability depended on the role that the employer assigned to the employee and whether its performance 'gave the occasion for the wrongful act'. This involved looking at the wrongful acts and whether the employee was placed in a position of power and intimacy via the plaintiff which gave the occasion for the wrongful acts such that they could be regarded as having been committed in the course of the employee's employment: TheCouncil of Trinity Grammar School v Anderson [465].
The court was satisfied that the appellant was unable due to the effluxion of time, unavailability of witnesses (particularly the former Head of the Preparatory School) and the absence of documentation to deal in any meaningful fashion with the critical question of whether the employee was placed by the employer in a position of power and intimacy which gave the occasion for the wrongful acts.
In Ward v Trustees of the Roman Catholic Church for the Diocese of Lismore a stay was granted. The plaintiff alleged she was assaulted by a parish priest who had died in excess of 60 years before the proceedings were commenced.
There was nothing to suggest that during his lifetime the parish priest or the defendants were confronted with the allegations and there was no document in existence bearing on the allegations, nor was there anything to suggest that there were any such documents. There had been no complaint made to anyone about the sexual abuse in the years that followed its occurrence. There was no suggestion that any third person, party or agency was ever given the opportunity to investigate the allegations during the parish priest's lifetime or even after he died.
His Honour Justice Beech‑Jones found that the defendants were 'utterly in the dark about the allegations made' and they had no material of any kind to enable them to evaluate the plaintiff's claim. The defendants were not in a position to determine whether to admit or deny any relevant fact and could not meaningfully participate in the proceedings and they could not be relieved of the consequences of the effect of the passage of time and it was not possible for a fair trial.
In Gorman v McKnight [2020] NSWCA 20 three actions were brought against an estate by three individuals who alleged that a deceased person had sexually assaulted them whilst they were minors. The assaults were alleged to have taken place between 25 to 40 years prior to the commencement of the proceedings. An application for a stay bought by the legal personal representative of the deceased was refused and the appeal was dismissed.
The allegations were made whilst the deceased was alive and in a position to discuss them with his lawyer. A pretext call had been made between the deceased and one of the plaintiffs. The deceased had been arrested and charged but died before the stay application. His lawyer gave evidence about the instructions. The appeal court concluded that in light of those instructions the existence of sexual interactions between each of the plaintiffs and the deceased could not seriously be put in issue.
The question of consent was relevant. However insofar as it was a question of law the court said the deceased's evidence would be irrelevant. Insofar as it was a question of fact, each of the plaintiffs, on their own evidence, voluntarily returned to the deceased's property on a regular basis and the question was whether each of them was capable of understanding what was happening to them at the time and had the ability or the requisite maturity and strength to resist. These were matters upon which the deceased's evidence was not critical.
Whilst the deceased's death precluding his ability to give instructions as to the matter of honest reasonable belief as to the age of a victim, the court said a reference provided by him in which he acknowledged the age of one of the victims and the admission made in the pretext telephone call in essence meant that defence was effectively not available and therefore there was no prejudice to the defence of the proceedings.
In WCB v Roman Catholic Trust Corporation for the Diocese of Sale (No 2) [2020] VSC 639 (WCB) an application for stay was refused. The plaintiff alleged that between 1977 and 1980 he was sexually abused by a priest.
The plaintiff first reported the abuse in 1986 and the defendant commenced an investigation shortly thereafter whilst the priest was alive. Arrangements were made for the priest to see a psychiatrist and he made admissions of being guilty of the acts described by the plaintiff. These admissions were referred to in correspondence to an insurance company from the defendant's bishop in 1992.
The plaintiff made a complaint to the police in 1995. In the same year the priest was charged with a number of sexual offences against the plaintiff. The priest died three days after he was charged.
The defendants were being sued primarily on the basis of vicarious liability and there was no deficiency in their documentary records which created any significant prejudice to them. The stay was refused as the defendants had records of the parish priest's training and appointments, duties and the manner in which he performed that role. All relevant witnesses except for one were alive. The defendants had an opportunity to, and did, investigate the allegations being made against the parish priest whilst he was alive. The bishop had written to the insurance company in 1992 stating that the parish priest had admitted to his sexual abuse and the parish priest had been spoken to by the police in the 1995 investigation.
In ZYX the plaintiff claimed that from 1968 to mid‑1973 the defendant sexually abused her. One of the grounds for a stay was that the defendant's conduct of his defence had been irretrievably prejudiced by reasons of the delay in the proceedings. The allegations were made in the defendant's lifetime. His Honour Chief Judge Sleight observed that as the plaintiff can commence an action in child sexual abuse at any time, the focus on the delay must be on the issue of the defendant receiving a fair trial.
His Honour observed that trials are constantly held in circumstances in which, for a variety of reasons, including delay, not all relevant evidence is before the court and that does not usually suggest that it prevents a fair trial. A fair trial can occur even though witnesses have died.
His Honour declined to grant a stay on the basis, inter alia, that the removal of the time limit by Parliament recognises the unique inhibitors that exist for people who are victims of child sexual abuse. His Honour said that any inherent problems of memory loss or loss of evidence area disadvantage that exist for both plaintiff and defendant, who was still alive. His Honour noted that the defendant was unable to point to any distinct forensic disadvantage other than the inherent problems that delay may cause. His Honour said there was no evidence that the defendant suffered from dementia or other health problems which created a disadvantage for him (Moubarak), nor was there any significant evidence that had been lost (Batistatos v Roads and Traffic Authority of NSW and Connellanv Murphy [2017] VSCA 116), nor was any key witness deceased (as in Connellan v Murphy), nor were any loss of any relevant records or documents identified (Batistatos).
In Connellan the plaintiff claimed that when she was 7 years of age, she stayed at the defendant's home for a period of about 10 days and was sexually abused by him. At the time of the alleged abuse, the defendant was 13 years. The plaintiff commenced proceedings 48 years after the alleged events. Granting the stay, the court took into account the effect of delay on the memory of the parties. Of relevance was the fact that the defendant was being asked to defend himself where the plaintiff's own recollection of events were vague and neither side were in a position to investigate the surrounding circumstances and some potential witnesses were deceased. It was also noted that the family home where the alleged sexual assaults occurred had been destroyed and it was no longer possible to test the plaintiff's allegations by reference to the physical characteristics of the house.
In Chalmers v Leslie the plaintiff's action was based on intentional and unlawful sexual assaults committed by the first defendant. The plaintiff claimed against the second defendant on the basis that she owed a duty of care to avoid him suffering harm and caused him to be placed in the sole care of the first defendant for extended periods of time, during which he was sexually abused. The allegation was that the second defendant knew or ought to have known that the first defendant had sexually abused other young boys and with that knowledge, put the plaintiff in the first defendant's care. It was said the second defendant knew or ought to reasonably have known that the first defendant was sexually abusing the plaintiff.
It was not in dispute that the first defendant had severe dementia and was unable to provide instructions.
The factual situation was very similar to that in Moubarak however, the first defendant had pleaded guilty in 2003 to three charges of indecent assault on persons other than the plaintiff. Those offences had occurred while he was a teacher.
Martin J accepted that similar fact evidence was admissible in civil proceedings but found that the circumstance of the first defendant had rendered a fair trial impossible. Martin J found that the admission of evidence about which the first defendant could give no instructions would only render the trial more unfair.
Martin J accepted that the plaintiff's evidence could be tested in cross‑examination and that there was no challenge on the pleadings to the locations and times at which the plaintiff says he was abused. His Honour said that the reality was that nothing of any moment could be put to the plaintiff about the allegations because the first defendant could not give any instructions. As to the suggestion that these matters could be explored with the second defendant, Martin J pointed out that without a finding that the first defendant abused the plaintiff, there could be no finding of liability on the part of the second defendant. It was not being suggested that the second defendant could give any direct evidence about the alleged abuse and an unfair trial could not be made fair on the basis that the something might emerge from cross‑examination of another party. His Honour granted the stay.

The first defendant's submissions

The first defendant rely primarily on the affidavits of Ms Thomas.
Ms Thomas' affidavits say, in effect, that the first defendant have no documents bearing directly on the plaintiff's allegations. They point out that there is no suggestion by the plaintiff that he made any complaint or record prior to his complaint to the Royal Commission. Further, there is nothing to suggest that the first defendant was notified of the allegations or given an opportunity to investigate while Ms Moy was alive.
The first defendant points out that Ms Moy is now deceased and not able to give evidence. Their ability to deal with the plaintiff's allegations is therefore undermined, they cannot meaningfully contest the claim and are unable to receive a fair trial.
The first defendant relies on Ms Thomas' affidavits to establish that they have searched all the available records, produced all the records they can and made exhaustive searches of their records relating to Ms Moy and the plaintiff's placements at the facility.
The first defendant did not locate any documents which recorded any allegations, reports, complaints or incidents alleged, or otherwise, of child sexual abuse committed by Ms Moy.
The first defendant observes that applications made under the Freedom of Information Act 1982 (Cth) did not identify any reference or record that the plaintiff was abused at Mofflyn House.
Further, searches were made by the first defendant to try and verify the identity of alleged Wesley Church members. The search was to see whether there were any connections between Wesley Church and Mofflyn House. The search was largely conducted of the Battye Library for records of children from Mofflyn House going to Wesley Church. Although a file was located relating to Wesley Church, it was from the 1970s and related to fundraising and donations.
The first defendant submits that no connection between Wesley Churchgoers and Mofflyn House staff or residents could be established. I reject that submission. Ms Thomas' affidavit of 10 August 2020 (SET‑17) contains a transcript of an interview conducted with Mr Smith and Mrs Smith. Mr Smith was a director of the facility for a considerable period of time. The advertised qualifications were that the person be a member of the church and although Mr Smith seems to have commenced his employment in 1962 (after the plaintiff had left Mofflyn House), his wife states that all the kids were taken to Wesley Sunday School. Although they did not have to go, they were taken unless they kicked up an awful fuss.
There is ample material to enable an inference to be drawn of a connection between Wesley Churchgoers and Mofflyn House staff or residents at times contemporaneous with the relevant period (affidavit of the plaintiff GMB‑22, GMB‑25, GMB‑27).
The first defendant says they have not been able to identify any Wesley Church members or any records which show that the plaintiff was placed in the custody of Wesley Church members.
A search of Mofflyn House records did not give specific information about the time that the plaintiff was in Mofflyn House's care.
The first defendant was unable to locate any records relating to holiday or weekend placements while the plaintiff was in their care.
The first defendant says that the statement from Mr E, if admissible, simply confirms that Mum Moy would soap him up and force slithers of soap into his anus. In my view the statement is clearly admissible as evidence relevant to a fact in issue.
The first defendant says that there are no records which show that they were aware of any of the alleged abuse, be it occurring from Ms Moy or Wesley Church members before the plaintiff's statement made pursuant to the Royal Commission. Whilst they admit they were an occupier of the premises, they say are not able in the absence of Ms Moy to defend meaningfully the allegations.
One matter that the first defendant places considerable significance on is there claim that even if Ms Moy did behave in the way alleged in the slithers of soap incidences that would not constitute child sexual abuse.
Their submissions on this point are, as I understand them, as follows.
In Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 (Lawrence), Herron J accepted that an appropriate definition for 'child sexual abuse' within s 6A of the Limitation Act involved sexual acts 'done to seek or obtain physical or mental sexual gratification, whether immediate or deferred in time or space'.
The first defendant says that his Honour accepted the view that
… what is 'sexual' must involve sexual gratification … this is consistent with the explanation given by the Attorney General in the Parliamentary debates that physical abuse has not been included in the amending legislation when it does not involve an element of sexual stimulation.
The first defendant submits that as Ms Moy is not available to give evidence or indeed has not had the opportunity at any stage to speak to the allegations, it cannot be established that her acts were done to obtain physical or mental sexual gratification and therefore it could never be shown that her acts constitute child sexual abuse and thus are actionable. In relation to the fiduciary claim, the first defendant says the position is clearer as Ms Moy's death means the plaintiff cannot prove her intent and knowledge as pleaded.
I reject these submissions.
Judge Herron specifically stated that the definition to which I have referred will often be helpful in construing the meaning of 'sexual abuse' and observed that it was important that the courts have latitude to determine the meaning of the term in accordance with the particular circumstances of each case.
Judge Herron noted that there may be some qualification of the definition of sexual abuse he had referred to in that for the act to be sexual, it did not need to be done for the purposes of seeking or obtaining physical or mental sexual gratification. His Honour did not consider it necessary to resolve that issue.
Judge Herron specifically adopted the observations of Ginnane J in the Department of Health and Human Services v County Court of Victoria [2018] VSC 322 where Ginnane J said that there was no requirement that the evidence established that the abuser had a motivation or intention to sexually abuse and the abuser's conduct did not fall outside the term 'sexual abuse' because his touching was more likely to reflect his desire to exercise power and control. A desire to exercise power and control can be part of sexual abuse.
In my view sexual gratification by the abuser is not an element of the definition of child sexual abuse. The abuser's act must have a sexual connotation for those acts to constitute child sexual abuse however, that sexual connotation, without being exhaustive, (in a case involving physical touching) can be derived from the area of the body touched, the part of the body used by the assailant, the nature of any object used or the purpose and motive of the assailant. If the area of the body touched by itself does not objectively and equivocally establish a sexual connotation, but the abuser's purpose was sexual gratification, it would give the act the sexual connotation required for it to constitute sexual abuse. This accords with the way in which indecency is defined: SLJ v The Queen [2013] VSCA 193; (2013) 233 A Crim R 341; R v Harkin (1989) 38 A Crim R 296; Drago v The Queen (1992) 63 A Crim R 59.
Accordingly if a physical act was done to a child for the purpose of the sexual gratification of the abuser it would fall within 'child sexual abuse'. Child sexual abuse could also occur in circumstances where the motivation of the actor did not involve sexual gratification. Whether it constituted child sexual abuse would depend on the area of the body touched, the part of the body used by the assailant, the nature of any object used or the purpose and motive of the assailant, the circumstances in which the physical act occurred and the like.

In my view, the decision of Ginnane J in Department of Health and Human Services v County Court of Victoria which establishes that there is no requirement the evidence establishes that the abuser has a motivation or intention to sexually abuse must be correct. Herron J did not suggest to the contrary.
The submission that as Ms Moy is not available to give evidence or indeed has not had the opportunity to confront the allegations it cannot be established her acts were done to obtain physical or mental sexual gratification is rejected.
Even if 'child sexual abuse' requires an act of the abuser to be done for sexual gratification, it does not mean that the plaintiff would be unable to prove sexual gratification of Ms Moy in doing those acts without any admission from her.
The plaintiff would be entitled to ask the court to infer from Ms Moy's acts (if the court was satisfied that those acts occurred), the parts of the body touched, the frequency of the act, the use of soap, the unusual nature of the act that those acts were done for sexual gratification. Whether such an inference would be drawn is a different issue.
If Ms Moy's acts as alleged did occur those acts are in my view capable of being described as child sexual abuse. Similarly the knowledge and intent pleaded by the plaintiff in the fiduciary claim could be inferred by ordinary evidential principles and does not require any admission by Ms Moy.
The first defendant says that if the conduct occurred they would only be liable for the breach of fiduciary care claim if there was a connection between the conduct of Ms Moy and the masked men and they cannot examine the circumstances of that connection due to the inability of the plaintiff to identify those men, the vague description of the semi-rural property and the circumstances in which the plaintiff meet the men. As a result of the allegations post-dating Ms Moy's death they say, they cannot explore those issues fully and therefore cannot make a meaningful defence.
The first defendant says they have been deprived of the lack of any opportunity to take instructions and evidence from Ms Moy about the alleged slither of soap incidents and the introductions to men from the Wesley Church and their inability to do anything more to obtain meaningful relevant records or documentary information about the alleged events or matters or persons associated with them means that a stay ought be granted.

The plaintiff's submissions

The plaintiff stresses the exceptional nature of granting a stay in civil proceedings and that if the application was granted the plaintiff would be denied his opportunity to bring his action against the first defendant.
The plaintiff says that to grant a permanent stay would deplete public confidence in the judicial system in cases of historic child sexual abuse.
The plaintiff says they have effectively established a prima facie case because the first defendant admits they were the occupiers of Mofflyn House and that both the plaintiff and Mr E were former residents of Mofflyn House and that the first defendant employed a carer who could be the Mother Moy referred to. I observe that the question of whether the plaintiff is able to establish a prima facie case is not the critical issue. The critical issue is whether the first defendant have proven they cannot make a meaningful defence to its case.
The plaintiff says that an inferences can be drawn that a person of a similar name to the person identified by the plaintiff was the person who committed the sexual abuse and that person was Ms Moy.
The plaintiff points out, correctly, that as a matter of law the allegations are not required to be corroborated.
They say Mother Moy's conduct as disclosed in the incident referred to in [19] shows she has a propensity for violence towards children and the evidence of Mr E is similar fact evidence or evidence of a tendency on behalf of Ms Moy.
The plaintiff also relies on the March 2001 letter from the Western Australian Police Service to Mofflyn enquiring about allegations made by the two sisters and asking for any information Mofflyn had in relation to staff member, Ms Moy.
The plaintiff suggested that this letter combined with other evidence indicates that Ms Moy was involved in activities that may have not been appropriate or at least it creates a suspicion to that effect. I reject the submission that the police letter can prove or create a suspicion as to Ms Moy's activities. It shows no more than the police were interested in information about Ms Moy. It adds nothing to what is already established at [19].
The plaintiff correctly asserts that it is well accepted that young children have an inability to make immediate or recent complaints and often do not understand the physical treatment they are receiving is sexual abuse.
The plaintiff correctly asserts that child sexual abuse occurs in private and causes the victim trauma that is not openly discussed in public.
The plaintiff correctly asserts that it is accepted that the absence or death of a witness is not of itself sufficient to grant a permanent stay.
The plaintiff points out that in Lawrence the defendant called no witnesses as to the fact, but tested the memory and credibility of the plaintiff and his witnesses through cross-examination. They say the first defendant in this case can do the same. I observe that the significant difference is that in Lawrence liability for the sexual abuse was admitted and the action proceeded as an assessment of damages: Lawrence [6].
The plaintiff says the first defendant is able to overcome any difficulties presented by cross‑examining the plaintiff on the statement he made to the Royal Commission and the sworn evidence he gave in relation to this application and cross‑examine any witnesses he calls.
The plaintiff says the first defendant could also seek further and better particulars of the plaintiff's claim or deliver interrogatories which at this stage, they have not done. They could also subpoena materials they consider relevant to the plaintiff's credibility and subpoena police records regarding investigations of Ms Moy.
The plaintiff says that trials often involve the reconstruction of events and are often conducted in circumstances where relevant material is not available. Documents, records and other things may be lost or destroyed, witnesses may die, the fact that a tribunal is called upon to determine issues and facts upon less than all the material which relevantly bear on the matter does not make the trial unfair: R v Edwards [2009] HCA 20.
The plaintiff criticises the first defendant for its failure to making enquiries of Ms Moy's next of kin, Ms Garrod, the accountant Mr Kickbush, the officer preparing the calculations for Ms Moy's long service leave entitlements, Mr Lahor and Mr Watson and Mr Gibson who either gave a speech at Ms Moy's retirement or prepared information to use during the retirement speech. (Affidavit of the plaintiff, pars 35 - 38).
There is no merit in these submissions. There is nothing to indicate that any of these people particularly an accountant or a person preparing long service leave documents would have any information about a complaint about Ms Moy's alleged child sexual abuse which was not made until years after her death and years after she left Mofflyn House's employment.
There is some merit in the plaintiff's submission that the first defendant has not sought information relating to Ms Moy's criminal record. That aside I am satisfied from Ms Thomas' affidavit that the first defendant has made sufficient search and enquiries and the only information that they have been able to ascertain about Ms Moy's past behaviour relate to the disciplinary incident and Ms Moy's reaction when told by a former resident that she had being sexually abused by another resident.
The plaintiff also says that the first defendant claims the lack of records should not be given much credence because it is their obligation to keep records.

Conclusion

The starting point is that there is no statute of limitations for sexual abuse. That being so a delay in commencing proceedings cannot by itself ever be a ground to grant a stay.
The granting of a stay is rare and exceptional but can be given when a defendant proves they cannot make a meaningful defence to the claims against them.
The issue is whether in this case those circumstances exist where the allegation was never made whilst Ms Moy was alive and therefore the first defendant or any third party are deprived both of the ability to obtain instructions from her and meaningfully investigate the allegation.
In determining whether the first defendant can make a meaningful defence to the claims against them, both the causes of action and particulars relating to the causes of action must be examined.
The first cause of action pleaded is that the first defendant is vicariously liable for the wrongful and intentional assault and battery and child sexual abuse by Ms Moy.
In relation to the issue of vicarious liability, the essential ingredient is a wrongful act and whether the wrongful acts are such that they could be regarded as having been committed in the course of the employee's employment.
Nothing in the material satisfies me that the first defendant are not able to establish through other witnesses and other evidence the scope and duties of employment of Ms Moy as a house mother. It is the issue of whether a wrongful act occurred that is crucial.
The other causes of action relied upon by the plaintiff are breach of duty at common law and under the Civil Liability Act, breach of occupier's liability and breach of fiduciary duty of care. Each cause of action has as its factual base the intentional assault and battery and child sexual abuse by Ms Moy.
The fiduciary claim has the added factual element that Ms Moy knew and intended that the plaintiff was to be placed into the custody of members of the Wesley Church at unknown premises at which time he would be subject to sexual abuse by the church members.
The particulars for each of the 'other' causes of action are the same namely causing or permitting Mother Moy to engage in child sexual abuse, failure to take any adequate steps to prevent the sexual abuse, failure to provide and maintain a safe living arrangement for the plaintiff, failure to add adequate cautions for the safety of the plaintiff, failure to take any adequate steps to ensure he was not exposed to the risk of sexual abuse. Each of these particulars have, as their core basis, the allegation that the child sexual abuse (slivers of soap incidents) were committed by Mother Moy on numerous occasions.
The allegations against Ms Moy were first made to the Royal Commission in September 2017. The nature of the allegations made some 56 years after the alleged offence and after Ms Moy's death means that any enquiries for witnesses to the events are somewhat limited.
It is not asserted by the plaintiff that there were witnesses to the sliver of soap incidents. Mr E's evidence was that the sliver of soap incident occurred to him but he does not allege any other acts of sexual abuse. Mr E's evidence, whilst admissible, only highlights that the first defendant cannot make a meaningful defence. Ms Moy cannot provide instruction to the first defendant about that evidence. The admission of evidence about which the first defendant could obtain no instructions would only render the trial more unfair as in Chalmers v Leslie.
The plaintiff says the sliver of soap incidents were performed with the knowledge and intent he was to be placed into the custody of unknown members of the Wesley Church at unknown premises at which time he would be subject to sexual abuse by the church members. The ability of the first defendant to be able to track unknown men at an unknown place some 56 years later is somewhat limited.
I accept that the credibility and reliability of the plaintiff's version of events is able to be challenged in cross‑examination. As there was no complaint until the first statement to the Royal Commission it is not possible to cross-examine the plaintiff about any complaint made contemporaneously with the alleged offence. This alone would not justify the grant of a stay.
Ms Moy is deceased, and cannot give an account in court of what she says to the plaintiff's allegation.
There is no witness that can give evidence as to any account given by Ms Moy about these allegations because they were not raised during her life. There is no solicitor that could be called to whom she gave instructions, no police officer can be called about what she said when confronted with the allegation and no pre-text call was made. There was no investigation by the first defendant into the allegations in Ms Moy's lifetime. The first defendant cannot be criticised for this as no allegation was made in Ms Moy's lifetime. This is not a case of a defective investigation being made or no investigation being made in circumstances where it ought to have been.
The first defendant is able to put the plaintiff to proof, but they are denied the opportunity of seriously contesting what the plaintiff has to say and running a positive defence, that is, that what the plaintiff says did not occur.
There are no other meaningful inquiries that the first defendant can make in relation to challenging the essential issue, that is, the sliver of soap incidents. Nor can they investigate Ms Moy's knowledge and intention that the plaintiff was to be placed into the custody of unknown members of the Wesley Church at unknown premises at which time he would be subject to sexual abuse by the church unknown members. The plaintiff correctly says that knowledge and intent can be inferred however without interviewing Ms Moy the defendant cannot meaningfully defend those claim. The first defendant cannot know whether to admit or deny the allegations. The first defendant is not able to determine its approach to the defence of the claim.
The description of the buildings at the semi-rural premises where the events are alleged to have occurred are not sufficient to enable those buildings or the premises to be located, checked, confirmed, challenged or disapproved. By itself perhaps not a significant point but in combination with the other matters referred to it reinforces the defence difficulties.
There are no other meaningful inquiries that the first defendant can make in relation to challenging the primary issues.
In circumstances where the allegation has never been made whilst Mother Moy was alive, neither Mother Moy nor the defendants had had an opportunity to investigate.
It is practically impossible for the first defendant to have any real opportunity to participate in the hearing, or contest the case or, if appropriate, admit liability.
The burden of proof is, of course, on the plaintiff. The plaintiff has to prove his case on the balance of probabilities at the trial. Because of the delay a trial judge may well, in determining whether to accept the evidence of the plaintiff, consider issues such as whether his evidence is supported by other reliable evidence, the risk of confabulation, the effect of the delay on memory and the like. These matters go to assessing the weight of the plaintiff's evidence and the merits of his case and I accept that these issues can be adequately addressed by a trial judge.
Whilst the first defendant does not have the right to a perfect defence, it has a right to a fair trial. For the trial to be fair the first defendant has to be able to run a meaningful defence. The first defendant cannot speak to Ms Moy and admit liability if appropriate, or call her to challenge on oath the evidence of the plaintiff. The first defendant are simply left with the hope that something may turn up in cross‑examination of the plaintiff or his witnesses that may assist the defence case.
The statute of limitation enables an action to be brought at any time, however s 6A(5) preserves the court's discretionary power to grant a stay. Notwithstanding the removal of any limitation period to bring an action, the interests of the defendant are protected by the court's discretionary power to be able to grant a stay. The basis on which stays are granted is established by decisions of the High Court. The language used in s 6A does not derogate from those principles.
Each case must be examined in accordance with its own factual matrix. In Gorman v McKnight although the alleged abuser was dead the allegations were made while he was alive and he provided instructions to his lawyer. His lawyer was able to give evidence about the instructions and the existence of the sexual interactions between the plaintiff and the deceased was not seriously in issue. In WCB although the abuser was dead, the defendants' representatives had investigated the allegations and he had admitted his abuse to them. In XYZ the alleged abuser was alive at the time of the allegations and at the time of the stay application.
The reasoning in Moubarak [187] in my view is compelling. It has been followed in New South Wales and Queensland.
The first defendant cannot investigate the allegations, they cannot investigate Ms Moy's response to the allegations. The first defendant cannot admit or deny the plaintiff's allegations. Ms Moy cannot give evidence or give instructions to the first defendant and the continuation of the proceedings would be unfairly and unjustifiably oppressive because the first defendant cannot make a meaningful defence.
This has unfortunate consequences for the plaintiff. There is no fault on the plaintiff's part because he is entitled to bring the action at any time, but the effect of the timing of the action has been, in my view, to create unfairness to such a degree that the exceptional step should be taken of granting a permanent stay of proceedings in favour of the first defendant.
The parties are at liberty to relist this matter if an agreement as to costs cannot be reached.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Associate to Judge Bowden
22 DECEMBER 2020