GMB v UnitingCare West v The State of Western Australia - [2022] WASCA 92

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GMB -v- UNITINGCARE WEST
(ABN 75 467 729 203) [2022] WASCA 92

CORAM: QUINLAN CJ
BEECH JA
VAUGHAN JA

HEARD:   9 FEBRUARY 2022
DELIVERED          :   26 JULY 2022
FILE NO/S:   CACV 4 of 2021
BETWEEN:   GMB
Appellant
AND
UNITINGCARE WEST (ABN 75 467 729 203)
First Respondent
THE STATE OF WESTERN AUSTRALIA
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
File Number            :   CIV 3645 of 2019

Catchwords:

Practice and procedure – Application for permanent stay of proceedings – Claim for damages for child sexual abuse – Death of alleged principal tortfeasor – Whether proceedings unfairly and unjustifiably oppressive – Whether failure to take into account material considerations – Considerations not raised before primary judge – Whether considerations obvious

Legislation:

Limitation Act 2005 (WA), s 6A

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	G R Donaldson SC & J G M Fiocco
First Respondent	:	D Lloyd SC & G P Bourhill SC
Second Respondent	:	No appearance

Solicitors:

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

Cases referred to in decision:

GMB v UnitingCare West [2020] WADC 165
House v The King [1936] HCA 40; (1936) 55 CLR 499
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44
Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218
Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361
Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission [2016] NSWCA 298; (2016) 116 ACSR 473
Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109

JUDGMENT OF THE COURT:

Introduction and overview

The appellant, GMB, was born in 1953. He was abandoned as a boy and from a very young age moved between family members, foster families and institutions for the care of children operated by 'Methodist Homes for Children', an agency of the Methodist Church. One of the institutions was a child residential facility known as Mofflyn House (Mofflyn House).
The first respondent, UnitingCare West (UnitingCare), is a charity that, upon its commencement in 2006, assumed the responsibilities of Mofflyn House.
From about 1958 to 1961, the appellant lived at Mofflyn House.
In 2017 the appellant made a statement to the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). In the statement the appellant described having been subject to sexual and physical abuse while at Mofflyn House. He described abuse by his carer at Mofflyn House, a woman he identified as 'Mum Moyne', and by men from Wesley Church, who took him to a semi‑rural location and engaged in what might best be described as bizarre, ritualistic abuse. The latter abuse, by the men from Wesley Church, was alleged to have been facilitated by 'Mum Moyne'.
In his statement to the Royal Commission, the appellant also described sexual, physical and emotional abuse by relatives, foster carers, welfare officers and staff at Longmore Detention Centre, where he was sent at 14 years of age.
In 2019, the appellant commenced proceedings against UnitingCare and the State of Western Australia in the District Court of Western Australia for personal injuries caused by child sexual abuse within the meaning of s 6A of the Limitation Act 2005 (WA) (Limitation Act). The claims against the State of Western Australia relate to abuse alleged to have been committed by a staff member at a state‑run child reception home and at Longmore Detention Centre. Those claims are proceeding in the District Court and are not the subject of this appeal.
UnitingCare applied for an order that the proceedings against it be permanently stayed on the grounds that the continuation of the proceedings would be unfairly burdensome to it, as it was unable to deal meaningfully with the claims made by the appellant, and so could not receive a fair trial (stay application).
In that regard, while UnitingCare denied that it had employed a carer with the surname 'Moyne', as pleaded by the appellant, it confirmed that it did employ a carer named Audrey Moy (Ms Moy). It was accepted by UnitingCare that the appellant's reference to 'Mum Moyne' was quite capable of being a reference to Ms Moy. Ms Moy, however, died in 2012, before UnitingCare was notified of the appellant's claims. Nor, UnitingCare submitted, did it have any documentation bearing directly on the appellant's claims in relation to Ms Moy.
The stay application was heard by Bowden DCJ.[1]
[1] GMB v UnitingCare West [2020] WADC 165 (Primary reasons).
The learned primary judge granted the stay in favour of UnitingCare. His Honour concluded that the continuation of the proceedings would be unfairly and unjustifiably oppressive because UnitingCare could not make a meaningful defence.[2] In so concluding, his Honour found, inter alia, that as no allegation was made in relation to Ms Moy in her lifetime, UnitingCare could not meaningfully investigate or respond to the appellant's allegations.[3] His Honour also found that it was practically impossible for UnitingCare to have any real opportunity to participate in the proceedings, to contest the case or, if appropriate, to admit liability.[4]
[2] Primary reasons [155].
[3] Primary reasons [143], [148].
[4] Primary reasons [149].
The appellant appeals from the order for a permanent stay.
In appealing from the learned primary judge's ultimate conclusion that the continuation of the proceedings would be unfairly and unjustifiably oppressive, the appellant does not challenge any of his Honour's findings as to the prejudice that UnitingCare would now face in having to defend the claims. He does not challenge, for example, the primary judge's findings that UnitingCare cannot make meaningful inquiries into the allegations and cannot make a meaningful defence.
The appellant also accepts, with respect correctly, that the primary judge's decision was a discretionary one, to which the principles in House v The King[5] apply. Those principles require the appellant to identify some error on the part of the primary judge, such as acting on a wrong principle, mistaking the facts or failing to take into account some material consideration.[6]
[5] House v The King [1936] HCA 40; (1936) 55 CLR 499 (House v The King).
[6] House v The King 504 ‑ 505 (Dixon, Evatt & McTiernan JJ).
In the present case, the appellant alleges two, related, errors. Indeed, at the hearing of the appeal, senior counsel for the appellant submitted that grounds 1 and 2 were substantively the same, in the sense that they each sought to express the same substantive error in terms of a different category of House v The King error.[7]
[7] Appeal ts 8.
By ground 1, the appellant contends that the learned primary judge proceeded upon a wrong principle, namely that proceedings will be unfairly and unjustifiably oppressive even where the inability to investigate or defend the allegations the subject of the proceedings 'is due to the fault of the defendant'.[8]
[8] Ground 1 (WAB 6).
Relatedly, by ground 2, the appellant submits that the learned primary judge failed to take into account material considerations which his Honour was required to take into account. Those 'material considerations' were, in essence, the matters that the appellant contends lead to the conclusion, contained in ground 1, that the inability to investigate or defend the allegations the subject of the proceedings '[was] due to the fault of [UnitingCare]'. Those material considerations, in summary, are that:
(a)during Ms Moy's lifetime, UnitingCare (or its predecessors) became aware of allegations of 'serious assault and sexual assault of young children by and involving Ms Moy' that ought to have been, but were not investigated;[9]
(b)being aware of those allegations, UnitingCare was required to investigate whether other children in the care of Mofflyn House had been the victims of 'serious assault and sexual assault of young children by and involving Ms Moy';[10] and
(c)if UnitingCare had investigated whether other children in the care of Mofflyn House had been the victims of 'serious assault and sexual assault of young children by and involving Ms Moy', '[it] would have become aware of the claims now made by the [a]ppellant and been able to seek instructions from Ms Moy and obtain evidence from her'.[11]
[9] Ground 2(a) ‑ (b) (WAB 6).
[10] Ground 2(c) (WAB 7).
[11] Ground 2(d) (WAB 8).
For the reasons that follow, and which we will explain in more detail later, the appeal must fail.
It will be apparent that both of the grounds of appeal depend upon a number of potentially contentious factual findings. They rest, for example, upon the ultimate factual finding that, but for its 'fault', UnitingCare would have been able to seek instructions from Ms Moy in her lifetime as to the appellant's allegations.
That ultimate factual finding would, in turn, depend upon the answer to a series of factual questions as to, for example, the nature and timing of the other allegations made in relation to Ms Moy; what the proper response to those allegations would have been at the time; whether that response would have led to broader enquiries and, if so, the form of those broader enquiries; whether, when and how those broader enquiries might have led to the appellant; and whether that would have led to earlier discovery of the appellant's claims.
The learned primary judge did not make the ultimate factual finding and did not make any of the necessary intermediate factual findings that might lead to that ultimate factual finding. His Honour was not asked to do so. Indeed, as senior counsel for the appellant accepted at the hearing of the appeal, the basis upon which the appellant contended, on appeal, that the stay ought to have been refused was not put to the learned primary judge.[12]
[12] Appeal ts 12 ‑ 13.
The absence of any proper factual basis for the appellant's contentions in this regard are, in our view, fatal to the merits of the appeal.
As to ground 1, for example, the learned primary judge did not – in the manner that the ground contends – proceed upon a wrong principle for the simple reason that his Honour in no way applied the principle alleged by the appellant. It was not put to the primary judge, and his Honour did not find, that UnitingCare's inability to investigate or defend the allegations the subject of the proceedings was due to its own fault, a proposition that was the central component of the alleged 'wrong principle'.
As to ground 2, the law is clear that a party who contends on an appeal against a discretionary decision that the judge failed to take particular matters into account, must demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious.[13] While the appellant submitted that the matters referred to in ground 2 were obvious, in our view they were not. They were, rather, contestable matters of fact, which, had they been put to the primary judge, may well have been the subject of further evidence.
[13] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 (Macedonian Orthodox Community Church St Petka Inc) [120] (Gummow ACJ, Kirby, Hayne & Heydon JJ).
The appeal must therefore be dismissed.

The appellant's claims against UnitingCare

Before turning to the application before the learned primary judge, the appellant's pleaded case against UnitingCare may be briefly summarised.
In his Re‑Amended Statement of Claim dated 14 February 2020 (Statement of Claim), the appellant pleaded that during the period from in or about 1957 to in or about 1961 he was a resident and under the care of personnel at 'Mofflyn'. That period was defined in the Statement of Claim as 'the first period'.[14]
[14] Statement of Claim [4(a)] (Supplementary Appeal Book (SAB) 19).
The Statement of Claim then pleads:[15]
5During the first period, while the [appellant] was a resident and under the care of personnel at Mofflyn, the [appellant] was wrongfully and intentionally on numerous occasions sexually assaulted ('the First Assaults') by a female carer, employed by [UnitingCare], by the name of or known as 'Mum Moyne' ('the Carer').
Particulars of First Sexual Assaults
(a)Anal penetrations of the Plaintiff by slithers of soap inserted by the Carer.
6The First Assaults pleaded in paragraph 5 constituted the intentional torts of assault and battery upon the Plaintiff and 'child sexual abuse' as a (sic) defined by Section 6A(l) of the Limitation Act 2005 (WA).
[15] Statement of Claim [5] ‑ [6] (SAB 20).
The significance of the pleading that the First Assaults were 'child sexual abuse' within the meaning of s 6A(1) of the Limitation Act, is that s 6A(2) of the Limitation Act provides that there is no limitation period in respect of a child sexual abuse action.
The Statement of Claim goes on to plead that UnitingCare was liable for the First Assaults. UnitingCare's liability is pleaded to arise pursuant to its vicarious liability,[16] a common law duty of care[17] and occupiers' liability.[18]
[16] Statement of Claim [7] (SAB 20).
[17] Statement of Claim [8] ‑ [9] (SAB 20 ‑ 21).
[18] Statement of Claim [10] ‑ [12] (SAB 21 ‑ 22).
Paragraph 12A of the Statement of Claim pleads that during the first period, UnitingCare owed the appellant a 'fiduciary duty of care' in respect of anything done to the appellant while at Mofflyn. Paragraphs 12B and 12C then plead:
12BDuring the first period, the first assaults were committed by the Carer with the knowledge and intention that the [appellant] was to be placed in the custody of members of the Wesley Church ('the Members') at various premises unknown to the [appellant], at which time the [appellant] would be subject to sexual abuse by the Members.
12CIn breach of the fiduciary duty of care, pleaded in paragraph 12B, [UnitingCare]:
(a)Caused or permitted the Members to engage in 'child sexual abuse' as defined by Section 6A(1) of the Limitation Act 2005(WA) ('Sexual Abuse').
(b)Failed to take any or any adequate steps to prevent the Sexual Abuse by the Members.
(c)Failed to provide or maintain safe living arrangements for the [appellant] when the [appellant] was at Mofflyn.
(d)Failed to take any or any adequate precautions for the safety of the [appellant].
(e)Failed to take any or any adequate steps to ensure the [appellant] was not exposed to the risk of Sexual Abuse.
As will be apparent, the allegations relating to the members of the Wesley Church pleaded in paragraphs 12B and 12C are linked to UnitingCare by the alleged involvement of 'the Carer' (i.e. 'Mum Moyne').

Factual basis for the appellant's claims

As the learned primary judge observed, the factual basis for the appellant's claims are revealed by an affidavit sworn by him on 21 September 2020 in opposition to the stay application (appellant's affidavit). The appellant's affidavit annexed the statement that he made to the Royal Commission.[19]
[19] Appellant's affidavit, Annexure 'GMB7' (GAB 70, 96 ‑ 103).
In his statement to the Royal Commission, the appellant said that when he was nearly six years of age and residing at Mofflyn House, he was placed in Mum Moyne's cottage and required to bath daily.
During that process the appellant said that Mum Moyne[20]
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.
[20] Appellant's affidavit, Annexure 'GMB7' (GAB 98).
In the Primary reasons, the learned primary judge described this allegation as the 'slivers of soap incidents'.[21] The slivers of soap incidents clearly correspond to the allegation in paragraph 5 of the Statement of Claim.
[21] Primary reasons [16].
The appellant's statement also said 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.
The appellant said that 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.
The appellant said that on the second last occasion that he visited the premises, after he returned to Mofflyn House he went to the toilet and bath and noticed a lot of blood from his bottom.
On the last occasion he visited the premises, the appellant said that he remembered waking up in a different room from that which he had gone to sleep. He said that he got up and walked down the hallway and saw a group of people with different coloured cloaks and different types of animal heads over their heads. The appellant said that 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. He said that his bottom was again pouring with blood when he went to the toilet and bath.
The appellant's statement to the Royal Commission said that '[l]ooking back, I feel like Mum Moyne was preparing me to be abused by the men she sent me off with from the Wesley Church'.[22]
[22] Appellant's affidavit, Annexure 'GMB7' (GAB 100).
The appellant's allegations concerning Mum Moyne and the unknown men from Wesley Church clearly correspond to the allegations in paragraphs 12B and 12C of the Statement of Claim.

Proceedings before the primary judge

At the hearing of the stay application, UnitingCare adduced affidavit evidence from an executive officer of UnitingCare, Susan Elizabeth Thomas,[23] and one of its solicitors, Rosemarie Jean Blakey‑Scholes.[24]
[23] Affidavit of Susan Elizabeth Thomas sworn 10 August 2020 (Ms Thomas' affidavit) (GAB 53 ‑ 64). The Primary reasons also refer to an affidavit of discovery sworn by Ms Thomas on 29 September 2020.
[24] Affidavit of Rosemarie Jean Blakey‑Scholes sworn 19 November 2020 (Ms Blakey‑Scholes' affidavit) (SAB 1 ‑ 13).
Ms Thomas' affidavit sets out the searches she made both of records in the custody of UnitingCare and other records in relation to the claims brought by the appellant. In summary, Ms Thomas' affidavit revealed that:
(a)the appellant was included in the roll of children at Mofflyn House for 1959 and 1960;
(b)Ms Moy had been employed at Mofflyn House from in or about 1958 to 1961 and again from 1967 to 1985 (i.e. for approximately 23 years);
(c)Ms Moy died in 2012; and
(d)her searches of the Mofflyn House records did not reveal any specific information around the time that the appellant was in care or any records relating to weekend or holiday placements.
The appellant filed two affidavits in opposition to the stay application. In addition to his own affidavit of 21 September 2020, the appellant adduced affidavit evidence from another former resident of Mofflyn House (Mr E) sworn 20 November 2020 (Mr E's affidavit). Mr E's affidavit deposed that he was at Mofflyn House during the period from 1958 to 1961 and that, while there, 'Mum Moy' would 'soap me up and she would then force slithers of soap into my anus'.[25]
[25] Mr E's affidavit [14] (SAB 16).
The appellant's affidavit, in addition to annexing his statement to the Royal Commission, annexed other documents relating to his time as a ward of the State and resident at Mofflyn House that he obtained from UnitingCare and the State's discovery.

In addition, the appellant annexed documentation relating to two matters referring to Ms Moy that did not relate to him.[26] Given the significance of those matters for the appellant's case on appeal it is necessary to describe those documents in some detail.
[26] The copies of the documentation annexed to the appellant's affidavit redacted some of the personal information in relation to other residents of Mofflyn House. Unredacted copies of a number of those documents were attached to Ms Blakey-Scholes' affidavit.
First, the appellant's affidavit annexed a one page handwritten document relating to Ms Moy and another boy. Its author is unknown. The document is dated 4 October, but does not specify a year. The document records that on an unspecified date Ms Moy caught a boy showing his private parts to the girls and that 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. The document records that Ms Moy also hit the boy with a piece of thick plastic on his bare seat, leaving red marks.[27]
[27] Appellant's affidavit, Annexure 'GMB15' (GAB 117).
Secondly, the appellant's affidavit annexes a number of documents concerning two sisters who were residents at Mofflyn House between 1975 and 1977, including a series of what appear to be file notes from December 1995.[28]
[28] Appellant's affidavit, Annexure 'GMB16' ‑ 'GMB17' (GAB 118 ‑ 119).
In December 1995, the sisters had asked Mofflyn if they could have contact with former Mofflyn House staff who may remember them, to assist them in clarifying their memories and recollections.[29] A caseworker at Mofflyn wrote to Ms Moy by letter dated 8 December 1995, requesting her assistance.[30] Ms Moy responded that she remembered the family, that she had some photographs of the sisters (and their brother) and that she was willing to meet with the sisters.[31]
[29] Appellant's affidavit, Annexure 'GMB17' (GAB 119).
[30] Appellant's affidavit, Annexure 'GMB18' (GAB 120).
[31] Appellant's affidavit, Annexure 'GMB17' (GAB 119).
According to the file notes, the caseworker and Ms Moy met with the sisters on 19 December 1995. At that meeting one of the sisters said that she wished to confront Ms Moy in relation to an incident that occurred when she was at Mofflyn House. The sister said that she was sexually assaulted by a male child resident and that upon telling Ms Moy of the assault, Ms Moy slapped her face and told her to go away. The notes record that Ms Moy was taken by surprise and told the sisters that she could not recall the incident.[32]
[32] Appellant's affidavit, Annexure 'GMB16' (GAB 118).
The caseworker recorded that she discussed the matter further with the sister, suggesting she seek counselling with a counsellor with experience in sexual assault and offered to assist. The sister said that she had in some way addressed the issue by confronting Ms Moy. The sisters thanked the caseworker and Ms Moy for meeting with them and apologised for raising the issue of the alleged assault without warning. The caseworker advised the sisters that they should not hesitate to contact her if they wished to discuss the matter further. [33]
[33] Appellant's affidavit, Annexure 'GMB19' (GAB 121).
Apparently related to this matter, on 9 March 2001, the Western Australian Police Service wrote to Mofflyn enquiring as to information in relation to the two sisters and asked for any information Mofflyn had in relation to Ms Moy. There was no evidence that the police spoke to Ms Moy about those allegations.[34]
[34] Appellant's affidavit, Annexure 'GMB21' (GAB 123).
The use to which the appellant put the descriptions of Ms Moy inappropriately disciplining and hitting a boy in the unknown year and slapping a girl in around 1975 to 1977 in the stay application appears to have been that they connected Ms Moy to the 'Mum Moyne' described by the appellant. In his written submissions before the primary judge the appellant referred to that evidence as 'similar fact' evidence as to Ms Moy having a propensity for violence towards children.[35] Similarly, at the hearing of the stay application, counsel referred to those matters in the context of submitting that the evidence showed Ms Moy to be a 'strict disciplinarian' and that the appellant could establish a prima facie case.[36] That is how his Honour addressed the matters in the Primary reasons,[37] observing 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'.[38]
[35] Plaintiff's Outline of Submissions dated 6 November 2020 [26] ‑ [27] (BAB 56 ‑ 57).
[36] Ts 40 ‑ 43 (GAB 42 ‑ 45).
[37] Primary reasons [111] ‑ [116].
[38] Primary reasons [111].
It was not submitted to the primary judge that the reason that UnitingCare was not able to seek instructions from Ms Moy in her lifetime as to the appellant's allegations was due to its fault in not properly dealing with those two incidents. Accordingly, while the learned trial judge referred to the evidence in relation to those incidents in the Primary reasons, his Honour did not make findings in relation to, or otherwise address, such a submission. Indeed, consistent with the manner in which the matter was argued before his Honour, the primary judge stated that '[t]his is not a case of a defective investigation being made or no investigation being made in circumstances where it ought to have been'.[39]
[39] Primary reasons [143].
As we have said, this finding was consistent with the manner in which the matter was argued before the learned primary judge. In oral submissions, then counsel for UnitingCare stated:[40]
And there's no suggestion at all that [UnitingCare] had any notice of this possible allegation before [Ms Moy] died. So there was never a possibility of any information being obtained from her before she passed away. And I don't understand it to be part of [the appellant's] argument in opposition to this application, that [UnitingCare] has somehow been neglectful in that respect.
[40] Ts 14 (GAB 16).
Nothing said by then counsel for the appellant in answering UnitingCare's application for a permanent stay sought to challenge that understanding of the case or otherwise suggest that appropriate inquiries could and should have been made.
In the Primary reasons, the learned primary judge comprehensively set out the relevant legal principles in relation to the exceptional power to grant a permanent stay of proceedings,[41] including a summary of those principles by Bell P (as his Honour then was) in Moubarak by his tutor Coorey v Holt.[42] The learned primary judge commenced that discussion of the principles by recognising that s 6A(5) of the Limitation Act preserved 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 and that the court was not restricted from staying proceedings where it determines that a fair trial is not possible.[43]
[41] Primary reasons [38] ‑ [44]. His Honour set out relevant similar cases at [45] ‑ [76].
[42] Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218 (Moubarak) [70] (Bell P).
[43] Primary reasons [34] ‑ [37].
Other than the matter raised by ground 1, it was not suggested that his Honour erred in his identification of the relevant principles.
Having set out the parties' respective submissions the learned primary judge observed that each cause of action had as its factual base the intentional assault, battery and child sexual abuse by Ms Moy, with the fiduciary claim having the added factual element that Ms Moy knew and intended that the appellant 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.[44]
[44] Primary reasons [135] ‑ [136].
His Honour then expressed his conclusions as follows:[45]
[45] Primary reasons [138] ‑ [156].
[138]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.
[139]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.
[140]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.
[141]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.
[142]Ms Moy is deceased, and cannot give an account in court of what she says to the plaintiff's allegation.
[143]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.
[144]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.
[145]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.
[146]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.
[147]There are no other meaningful inquiries that the first defendant can make in relation to challenging the primary issues.
[148]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.
[149]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.
[150]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.
[151]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.
[152]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.
[153]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.
[154]The reasoning in Moubarak [187] in my view is compelling. It has been followed in New South Wales and Queensland.
[155]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.
[156]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. (emphasis added)
We turn to the grounds of appeal.

Grounds of appeal

As noted at the beginning of these reasons there are two, closely connected, grounds of appeal.
The grounds of appeal are as follows:
1.In the exercise of the discretion conferred by District Court Rule r 24(2)(p) and ordering a permanent stay of the proceedings, the learned primary Judge proceeded upon a wrong principle AND THEREBY such discretion miscarried.
The wrong principle upon which the learned primary Judge proceeded was that, where a defendant asserts that it cannot advance a meaningful defence to a proceedings, because it cannot investigate the Appellant's allegations or call witnesses critical to its defence, and thereby asserts that continuation of a proceedings would be unfairly and unjustifiably oppressive to it (or result in a trial unfair to it) and that the inability to investigate the Appellant's allegations or call witnesses critical to its defence is due to the fault of the defendant, then continuation of proceedings would none-the-less be unfairly and unjustifiably oppressive (or result in a trial unfair to the defendant).
2.In the exercise of the discretion conferred by DCR r 24(2)(p) and ordering a permanent stay of the proceedings, the learned primary Judge failed to take into account material considerations AND THEREBY such discretion miscarried.
The material considerations which the learned primary Judge failed to take into account, in deciding whether continuation of proceedings would be unfairly and unjustifiably oppressive (or result in a trial unfair to a defendant), because the defendant asserts that it cannot advance a meaningful defence because, it cannot investigate the Appellant's allegations or call witnesses critical to its defence, were:
(a)Although the First Respondent first became aware of the details of the Appellant's claim alleging vicarious liability for the conduct of its employee Ms Moy after her death, the First Respondent knew, prior to Ms Moy's death, of allegations of serious assault and sexual assault of young children by and involving Ms Moy.
(b)Although knowing of such allegations, the First Respondent did not investigate Ms Moy's conduct or seek to identify other children in the care of the First Respondent who had been the victims of serious assault and sexual assault by and involving Ms Moy.
(c)The knowledge of such allegations, and the circumstances of having this knowledge, required the First Respondent to investigate, prior to Ms Moy's death, whether other children in the care of the First Respondent had been the victims of serious assault and sexual assault by and involving Ms Moy.
(d)Had the First Respondent investigated, prior to Ms Moy's death, whether other children in the care of the First Respondent had been the victims of serious assault and sexual assault by and involving Ms Moy the First Respondent would have become aware of the claims now made by the Appellant and been able to seek instructions from Ms Moy and obtain evidence from her.
As is apparent from their terms, each ground of appeal identifies an error in the exercise of the learned primary judge's discretion. In doing so, as is clear from the appellant's submissions, he invokes the principles in House v The King.[46] It is as well to repeat those principles:[47]
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[46] Appeal ts 7.
[47] House v The King 504 ‑ 505 (Dixon, Evatt & McTiernan JJ).

The grounds of appeal assert express error, namely that his Honour proceeded upon a 'wrong principle' (ground 1) and failed to take into account 'some material consideration' (ground 2). They do not invoke implied error, namely that the result embodied in the order was, on the facts, unreasonable or plainly unjust.
As also noted above, in the present case the 'wrong principle' and failure to take into account 'some material consideration' contended for by the appellant are based upon the same substantive complaint: namely that the inability of UnitingCare to meaningfully defend the claims made by the appellant or to obtain a fair trial are a consequence of its own fault.
In that regard, the appellant does not contend that the primary judge erred in concluding that UnitingCare could not obtain a fair trial; rather that the fact that it cannot do so is due to its own 'deliberate shocking decisions'.[48] In this regard, as UnitingCare accepted at the hearing of the appeal, the feature of the primary judge's ultimate conclusion that was, in effect, challenged by the grounds is the conclusion that the proceedings would 'be unfairly or unjustifiably oppressive' (with the emphasis on the oppression being 'unfair' or 'unjustified').[49] Put another way, any prejudice or oppression that UnitingCare would face would not be 'unfair' or 'unjustified', because the prejudice or oppression is its own fault.
[48] Appellant's Submissions [6] (WAB 9); see also appeal ts 10.
[49] Appeal ts 31 ‑ 32.
The grounds of appeal are nevertheless conceptually distinct and may be considered separately.

Ground 1

Ground 1 alleges that the primary judge acted on a wrong principle. The wrong principle upon which the learned primary judge is alleged to have acted is set out with admirable clarity in terms in the ground itself.
The wrong principle identified by ground 1 reveals why that ground must fail. The learned trial judge simply did not apply the principle alleged. In particular, his Honour did not conclude that, while 'the inability to investigate the [appellant's] allegations or call witnesses critical to its defence is due to the fault of the defendant, [the] continuation of proceedings would none-the-less be unfairly and unjustifiably oppressive'.
That principle is pregnant with the implicit finding that the inability to investigate the appellant's allegations was due to the fault of the defendant. In other words, in asserting that the judge acted on this principle, the appellant asserts – and must demonstrate – that his Honour found, expressly or impliedly, that UnitingCare's inability to meaningfully defend the claims made by the appellant was due to its own fault. The learned primary judge made no such finding, expressly or impliedly; indeed, insofar as his Honour made any finding as to the responsibility of UnitingCare for its inability to meaningfully defend the claims, his Honour found to the contrary.[50]
[50] Primary reasons [143].
Having not made any finding that UnitingCare's inability to meaningfully defend the claims made by the appellant was due to its own fault, his Honour can hardly be taken to have concluded that the proceedings were unfairly and unjustifiably oppressive notwithstanding such a finding.
Accordingly, ground 1 must fail.
At the hearing of the appeal, senior counsel for the appellant sought to recast ground 1 in terms that his Honour proceeded upon 'an incorrect principle [because] his Honour did not have regard to facts that established that the reason for the unfairness to [UnitingCare] was as a result of its own conduct'.[51] So understood, however, it becomes clear that the appellant's real complaint is a failure to take into account material considerations; that is the complaint made by ground 2.
[51] Appeal ts 29.
That brings us to ground 2.

Ground 2

Ground 2 alleges a failure to take into account material considerations.
It is important to recognise, in this context, that there is a distinction to be drawn between the requirement that a decision maker take into account a particular consideration and whether the decision maker has failed to take into account a particular piece of evidence. As this Court has previously observed:[52]
There is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other. In Xie Mian Shen v Minister for Immigration and Ethnic Affairs, French J said, at 15 ‑ 16:
There is a distinction to be drawn between taking into account relevant considerations and taking into account particular pieces of evidence - Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs. In the present case the primary relevant considerations are those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act.
The allegations that the tribunal failed to take into account relevant considerations in this case are, on the face of the application, founded upon the failure of the tribunal to take into account particular pieces of evidence. None of the grounds in this respect is capable of sustaining a case that the tribunal failed to take into account relevant factors (citations omitted).
[52] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [57] (Buss JA, Wheeler & Pullin JJA agreeing; see also Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 [53] (Owen JA, Buss & Newnes JJA agreeing).
In the present case, properly characterised, the material considerations (as opposed to the pieces of evidence) ultimately identified in ground 2 are, in substance, that UnitingCare should have been able to seek instructions from Ms Moy in her lifetime as to the appellant's allegations, and that it was only prevented from doing so by reason of its own failures. The individual pieces of evidence upon which the appellant relies to draw that inference are just that; pieces of evidence, rather than material considerations.
This is important because, as was made clear in the High Court in Macedonian Orthodox Community Church St Petka Inc:[53]
when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious.
[53] Macedonian Orthodox Community Church St Petka Inc [120] (Gummow ACJ, Kirby, Hayne & Heydon JJ). See also: Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission[2016] NSWCA 298; (2016) 116 ACSR 473 [51] (Leeming JA, McColl & Gleeson JJA agreeing); Mighty River International Ltd v Mineral Resources Ltd[2020] WASCA 44 [77] (Quinlan CJ, Beech & Vaughan JJA).
There can be no doubt that in the present case the material considerations relied upon by the appellant in ground 2 of the appeal were not drawn to the learned primary judge's attention. So much was accepted by the appellant at the hearing of the appeal.[54] The real question then is whether those matters were fundamental and obvious.
[54] Appeal ts 12 - 13.
Put another way, should it have been obvious to the learned primary judge that the reason that UnitingCare was not able to seek instructions from Ms Moy in her lifetime as to the appellant's allegations was due to its fault in not properly dealing with the two incidents relied upon in the appeal? And relatedly, should it have been obvious that, had the required steps in relation to those incidents been taken, UnitingCare would have unearthed the appellant's allegations in Ms Moy's lifetime?
The appellant submits that these matters were obvious (indeed that they were 'profoundly obvious').[55] In that regard, senior counsel for the appellant based that submission on a number of unqualified assertions of fact that bear closer analysis.
[55] Appeal ts 12.
It was submitted, for example, that the 'only inference' to be drawn from the document, describing the incident involving the boy in the unknown year, was that UnitingCare 'deliberately and knowingly exposed young children to mistreatment, including assault and sexual assault, by Ms Moy and took steps to ensure that there would be no documentary record of this'.[56] Appalling as the kind of discipline described by the document is, to describe it as 'sexual assault' and as 'likely constituting propensity evidence in a charge of sexual assault involving the rape of a 6 year old',[57] is not in our view 'obvious' or the 'only inference' to be drawn from the record; nor does it follow from the evidence that it was 'obvious' in the context of the application before the learned primary judge that appropriate inquiries could and should have been made - or that this was the case the appellant was contending for.
[56] Appellant's Submissions [25] (WAB 13).
[57] Appellant's Submissions [23] (WAB 13).
To that inference, the appellant's submissions added what was submitted to be a further 'obvious' proposition:[58]
It is obvious that [UnitingCare] upon becoming aware of the matters evidenced in and arising from [the documents] should have contacted all children who were resident at Mofflyn under the care of Ms Moy to enquire of them whether they had been the victims of assault and sexual assault or other perverted treatment by Ms Moy.
[58] Appellant's Submissions [38] (WAB 16).
As senior counsel for UnitingCare submitted at the hearing of the appeal, such a course is not obvious. On the contrary, there was no evidence before the primary judge, nor any submissions, as to the form that any proposed communication with former residents of Mofflyn might take, given the sensitivity required in dealing with such matters and the need to avoid further trauma.[59] Had that question been raised before the primary judge it may have been the subject of evidence as to the appropriate action that an institution such as UnitingCare should take in that context. As it was, it was not, in our view, obvious that in 1995[60] Mofflyn House should have contacted all of the children under the care of Ms Moy over the course of her 23 years with Mofflyn House in the form proposed in the appellant's submissions.
[59] Appeal ts 37.
[60] That being relevantly the only date upon which the evidence could fix knowledge of the incidents.
To this step the appellant added a further step said to have been 'obvious', namely the critical causal fact that the forensic prejudice to UnitingCare would have been avoided:[61]
It can be inferred and it is obvious that had [UnitingCare] done this, the Appellant and [Mr E] would have been located and told [UnitingCare] of the matters deposed to. Had this occurred the matters deposed to could have been investigated. They could have been put to Ms Moy.
[61] Appellant's Submissions [39] (WAB 16); see also appeal ts 13 ‑ 14, 21.
To similar effect, senior counsel for the appellant submitted at the hearing of the appeal that had, in 1995 and 2001, enquiries been made of children who had in the start been in the care of Ms Moy then 'the only conclusion that could be reached' is that the appellant's allegations would have been unearthed.[62]
[62] Appeal ts 26.
These submissions cannot be accepted. In the absence of evidence from the appellant as to what he would have done had enquiry been made of him, in circumstances where the appellant first disclosed the alleged abuse by Ms Moy in 2017, it could not be said to have been an obvious inference that, had UnitingCare's predecessors made enquiry of the appellant in 1995 or 2001, he would have disclosed the alleged abuse. The contrary inference is, at the least, arguably open.
Notwithstanding the stridency with which these matters are now put on appeal, we are unable to accept that they should have been obvious to the learned primary judge. They were evidently not obvious to the parties appearing before his Honour. There was no suggestion, for example, that it 'went without saying' that UnitingCare's inability to receive a fair trial was due to its own 'deliberate shocking decisions'. Whether, and if so how, UnitingCare might have become aware of the appellant's claims at an earlier time was a matter calling for inference upon inference, towards which the evidence adduced before the primary judge was not directed.
On the contrary, in our view, the considerations that the appellant asserts on appeal were obvious were matters that, if they were to be raised in the stay application, ought to have been squarely drawn to both the parties' and the learned primary judge's attention, so that those matters might properly be the subject of evidence and submissions, and so might be the subject of realistic and genuine consideration by his Honour.
The learned primary judge in the present case properly identified the relevant principles and carefully and accurately summarised the parties' respective cases on the application, he did not allow extraneous or irrelevant matters to guide or affect him, he did not mistake the facts, and he did not fail to take into account any of the considerations drawn to his attention. The proper exercise of his Honour's discretionary judgement did not require his Honour to identify considerations not raised by the parties, in relation to which his Honour would have been required to draw a series of inferences, each of which was potentially contentious. Indeed, given the absence of reference by the parties to findings of the kind now asserted by the appellant, for his Honour to have so reasoned would have manifested error.
Ground 2 must fail.

Conclusion

For the foregoing reasons, the appellant has not established legal error on the part of the primary judge.
The appeal must be dismissed.
We would hear the parties as to final orders.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Associate to the Honourable Chief Justice Quinlan
26 JULY 2022