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
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…
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- AGLC
- GMB v UnitingCare West [2020] WADC 165
- Case
- [2020] WADC 165
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the death of the alleged perpetrator and the delay in bringing the action against the defendant constituted sufficient grounds to warrant a stay of the proceedings. The court needed to consider whether the defendant's ability to mount a fair defence had been prejudiced by the delay and the death of the alleged perpetrator. This required a careful balancing of the interests of both parties, including the plaintiff's right to seek redress and the defendant's right to a fair trial.
In arriving at its decision, the court considered the principles set out in previous cases, such as WCB v Roman Catholic Trust Corporation for the Diocese of Sale (No 2) and ZYX. The court noted that in the former case, a stay was refused because the defendant had an opportunity to investigate the allegations during the lifetime of the alleged perpetrator and had made admissions regarding the abuse. In contrast, in the current case, the defendant had no such opportunity. The court also highlighted the significance of the delay in bringing the action and the impact on the defendant's ability to mount an effective defence. Ultimately, the court found that the defendant's ability to conduct a fair defence had been prejudiced due to the delay and the death of the alleged perpetrator, leading to the grant of a stay.
The final orders of the court were to grant the stay of the proceedings, allowing the defendant to address the issues raised by the delay and the death of the alleged perpetrator. This decision ensures that the defendant has the opportunity to adequately prepare for the case and to mount a fair defence, while also acknowledging the plaintiff's right to seek redress for the alleged abuse.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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).