Medium Neutral Citation: Gorman v McKnight [2020] NSWCA 20
Hearing dates: 25 October 2019
Date of orders: 19 February 2020
Decision date: 19 February 2020
Before: Bell P at [1]; Payne JA at [91]; Emmett AJA at [97]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal with costs.
Catchwords:
APPEAL – whether permanent stay of proceedings should be granted – civil claims arising from alleged sexual assaults up to 40 years ago – where alleged perpetrator dead but had been charged with regard to some of the underlying complaints prior to his death – where perpetrator had admitted some of the acts but asserted that they were consensual – where each of the plaintiffs was a minor at the time of the alleged assaults

CIVIL PROCEDURE – historic sexual assault – claim against Estate – where alleged perpetrator dead
TORTS – sexual assault – alleged consent – where plaintiffs were minors at the time of alleged consent – whether consent by a minor is a defence to a civil claim for damages for sexual assault
Legislation Cited: Crimes (Amendment) Act 1984 (NSW)
Crimes Act 1900 (NSW) s 81
Crimes Amendment (Sexual Offences) Act 2003 (NSW)
Civil Procedure Act 2005 (NSW) s 67
Limitation Act 1969 (NSW) s 6A(6)
Cases Cited: Bain v Altoft [1967] Qd R 32
Council of Trinity Grammar School v Anderson [2019] NSWCA 292
Dean v Phung [2012] NSWCA 223
Freeman v Home Office (No 2) [1984] QB 524
House v R (1936) 55 CLR 499; [1936] HCA 40
Moon v Whitehead [2015] ACTCA 17
Moubarak by his tutor Coorey v Holt [2019] NSWCA 102
Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7
Norberg v Wynrib [1992] 2 SCR 226
R v Howard [1966] 1 WLR 13
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776
White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18
ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164
Texts Cited: SKN Blay, “Onus of Proof of Consent in an Action for Trespass to the Person” (1987) 61 ALJ 25
J Goudkamp, Tort Law Defences (Hart Publishing, 2016)
W Page Keeton et al (eds), Prosser and Keeton on Torts (5th ed, West Publishing Co, 1984)
Category: Principal judgment
Parties: Trevor Athol Gorman (First Appellant)
Ian Alexander Duncan (Second Appellant)
Christopher John McKnight (First Respondent)
Craig Andrew Channell (Second Respondent)
Aaron Gammage (Third Respondent)
Representation:
Counsel:
M Neil QC with M Kalyk (Appellants)
N Newton with J Horowitz (First Respondent)
Submitting appearance (Second Respondent)
D Weinberger (Third Respondent)
Solicitors:
Murphy’s Lawyers Inc (Appellants)
Conditsis Lawyers (First Respondent)
Brazel Moore Lawyers (Second…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gorman v McKnight

Details

AGLC: Gorman v McKnight [2020] NSWCA 20
Case: [2020] NSWCA 20
Decision Date: 19 February 2020

CaseChat Overview and Summary

The appeal concerned civil claims brought by several plaintiffs against the estate of the deceased, Mr McKnight, alleging sexual assaults that occurred up to 40 years prior. Mr McKnight had been charged in relation to some of the alleged incidents before his death, and had admitted to some of the acts but asserted they were consensual. Crucially, each of the plaintiffs was a minor at the time of the alleged assaults. The appeal was heard by Bell P, Payne JA, and Emmett AJA.

The central legal issues before the court were whether a permanent stay of proceedings should be granted in these circumstances, and whether consent by a minor could constitute a defence to a civil claim for damages for sexual assault.

The Court of Appeal determined that consent by a minor to sexual activity is not a defence to a civil claim for damages for sexual assault. The reasoning was that the law does not recognise a minor as having the capacity to consent to such acts, particularly given the inherent vulnerability of minors. The court found that the claims were not an abuse of process and that a permanent stay was not warranted.

Leave to appeal was granted, but the appeal itself was dismissed with costs.

Orders

Orders of the court

1. Grant leave to appeal.

2. Dismiss the appeal with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Gorman v McKnight [2020] NSWCA 20

Most Recent Citation

Grant v Bird [2021] VSC 380

Cases citing this decision · 18 of 18 shown

Koschier v R
[2024] NSWCCA 24 Para 30

…tios v Photios [2019] NSWCA 158; (2019) 372 ALR 264 at [37]-[40]; Wigmans v AMP Ltd (2019) 103 NSWLR 543; [2019] NSWCA 243 at [35]; Gorman v McKnight [2020] NSWCA 20 at [50]; and CBRE (V) Pty Limited v Trilogy Funds Management Limited (2021) 107 NSWLR 202; [2021] NSWCA 316 at [8]; see also M Davies, AS Bell, PGL B…
DJW v State of Queensland
[2023] QSC 138

…uncil of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292, applied Gorman v McKnight (2020) 19 ASTLR 181; [2020] NSWCA 20, applied Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46, cited Moubarak v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, applied Page v The Central Queenslan…
Stewart v MA
[2023] NSWSC 1046 Para 2

…the facts of the present case are vastly different from the facts of those cases where a permanent stay has been refused, including Gorman v McKnight [2020] NSWCA 20; and…
CM v Trustees of the Roman Catholic Church for the Diocese of Armidale; EM v Trustees of the Roman Catholic Church for the Diocese of Armidale
[2023] NSWSC 1000 Para 22

…a party to make an application such as this by virtue of s 6A(6) of the Limitation Act (see Moubarak at [188]; Gorman v McKnight (2020) 19 ASTLR 181; [2020] NSWCA 20 at [4]):…
Willmot v State of Queensland
[2023] QCA 102 Para 2

…concluded that it was not possible to have a fair trial and a permanent stay was granted.” [68] Gorman v McKnight [2020] NSWCA 20.…
Peters v Trustees of the Marist Brothers
[2023] NSWSC 475 Para 15

…6A(6): Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [188] (‘ Moubarak ’); Gorman v McKnight (2020) 19 ASTLR 181; [2020] NSWCA 20 at [4] (‘ Gorman ’).…
Burrows v Patsantzopoulos
[2022] NSWDC 442 Para 54

…eriorating cognitive condition of the defendant inhibits his capacity to give detailed instructions, she points to the fact that in Gorman v McKnight [2020] NSWCA 20 (“ McKnight ”) the defendant had died, and yet the proceedings were not stayed. She further drew attention to the fact that, as in this case, in McKn…
BRJ v The Corporate Trustees of the Diocese of Grafton
[2022] NSWSC 1077 Para 74

…bear upon the fairness or unfairness of the proceedings had been undertaken. Her Honour relied upon the remarks of Payne JA in Gorman v McKnight [2020] NSWCA 20 at [94].…
Willmot v State of Queensland
[2022] QSC 167 Para 9

…quiries could be made; and there is no other material that sheds light on his putative response.” [emphasis added] [39] Gorman v McKnight [2020] NSWCA 20.…
The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ
[2022] NSWCA 78 Para 79

…any debate as to whether an error of that character needs to be demonstrated in an appeal from a decision on a permanent stay: see Gorman v McKnight [2020] NSWCA 20 (“ Gorman ”) at [50].…
Kassam v Hazzard; Henry v Hazzard
[2021] NSWSC 1320

…’s Case (1980) 145 CLR 532; [1980] HCA 30 Gorman v McKnight [2020] NSWCA 20 Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 33 Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 Henry & Ors v Hazzard (No 2) [2021] NSWSC 1235 Hepples v Federal Commissioner of Taxation (1…
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore
[2021] NSWSC 1204 Para 5

…019) 100 NSWLR 218; [2019] NSWCA 102, Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 and Gorman v McKnight [2020] NSWCA 20.…
A v B
[2021] NSWDC 491 Para 230

…In Gorman v McKnight [2020] NSWCA 20 the Court of Appeal considered the nature of consent which must be established in relation to a tort claim based on an alleged sexual assault. In Gorman a number of the complainants alleged offences constituting sexual assaults said to have been committed against them when they…
Grant v Bird
[2021] VSC 380 Para 1

…y unfair that a stay should be granted will depend on all the circumstances of the case.[10] [9] Moubarak (n 3) 238 [89]. [10]Ibid; Gorman v McKnight [2020] NSWCA 20, [43]; Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762, 823 [429] (‘ Council of Trinity Grammar School’) .…
ZYX (pseudonym initials) v JD (pseudonym initials) [No 2]
[2021] WADC 20 Para 3

…10] Moubarak , Batistatos , Connellan v Murphy [2017] VSCA 116 ( Connellan) , Estate of Judd v McKnight [2018] NSWSC 1489 on appeal Gorman v McKnight [2020] NSWCA 20; The Council of Trinity Grammar v Anderson . [11] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 107 (McHugh J).…
Gorman v McKnight (No 2)
[2021] NSWCA 33 Para 12

…On 19 February 2020, this Court granted leave to appeal but dismissed the appeal with costs: Gorman v McKnight [2020] NSWCA 20. The judgment of Bell P at paragraph 30 extracted a passage from the telephone conversations which were recorded by NSW Police pursuant to a warrant issued under the Surveillance Devices A…
Ugle v Masters
[2021] WADC 8 Para 44

…against an estate by three individuals who allege that a deceased person had sexually assaulted them whilst they were minors. [46] Gorman v McKnight [2020] NSWCA 20.…
GMB v UnitingCare West
[2020] WADC 165 Para 11

…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 applic…

View all 18 citing cases →

Cases cited in this decision · 16 of 16 shown

Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore
[2019] NSWSC 1776 Para 6

…specially at [427]−[430], and have also been applied at first instance: Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776 and ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164.…
The Council of Trinity Grammar School v Anderson
[2019] NSWCA 292 Para 6

…The principles in Moubarak were applied by this Court in Council of Trinity Grammar School v Anderson [2019] NSWCA 292 ( Trinity Grammar School ) especially at [427]−[430], and have also been applied at first instance: Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776 and…
ZYX v JD
[2019] WADC 164 Para 6

…ard v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776 and ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164.…
Moubarak by his Tutor Coorey v Holt
[2019] NSWCA 102 Para 4

…for sexual assault. The detail of these (nationwide) amendments is recorded in this Court’s recent decision in Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 at [32]−[38] ( Moubarak ). The amendments, however, did not and do not have the effect of precluding defendants from seeking a permanent stay of procee…
Estate Judd v McKnight (No 4)
[2018] NSWSC 1489

…ion: N/A Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2018] NSWSC 1489 Date of Decision: 05 October 2018 Before: Garling J File Number(s): 2016/310581; 2017/8605; 2017/96412; 2017/278663…
Moon v Whitehead
[2015] ACTCA 17 Para 72

…question, including his or her age and experience. It would not be affected by any evidence as to Mr Judd’s state of mind (see Moon v Whitehead [2015] ACTCA 17 at [22] ( Moon )) so that his inability to participate in the trial should not in this regard be considered to be a material source of prejudice.…
White v Johnston
[2015] NSWCA 18 Para 73

…decisions support the former view, however, including the learned discussion of the issue by Leeming JA in White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [94]-[129]; see also Freeman v Home Office (No 2) [1984] QB 524 at 539; J Goudkamp, Tort Law Defences (Hart Publishing, 2016) at 3.61; SKN Blay, “Onus…
Dean v Phung
[2012] NSWCA 223 Para 73

…d SMB (1992) 175 CLR 218 at 310-311; [1992] HCA 15 ( Marion’s Case ) supports the latter view, as does the decision of this Court in Dean v Phung [2012] NSWCA 223 at [59]-[62], the decision of the ACT Court of Appeal in Moon at [14], and the decision of the Supreme Court of Canada in Norberg v Wynrib [1992] 2 SCR 2…
Murakami v Wiryadi
[2010] NSWCA 7 Para 50

…eds to be demonstrated in an appeal from a decision permanently to stay proceedings may be open to debate (see Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 at [32]-[35]), but it is not necessary to resolve that question in the present case.…
Walton v Gardiner
[1993] HCA 77 Para 68

…Secondly, Mr Newton pointed to several passages in the majority joint judgment in Walton v Gardiner (1993) 177 CLR 378 at 396 and 398; [1993] HCA 77 which referred to an application for a permanent stay of proceedings as involving a “weighing process” and “a subjective balancing of the various factors and consid…
Secretary, Department of Health and Community Services v JWB and SMB
[1992] HCA 15 Para 73

…judgment, although dissenting on the facts, in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 310-311; [1992] HCA 15 ( Marion’s Case ) supports the latter view, as does the decision of this Court in Dean v Phung [2012] NSWCA 223 at [59]-[62], the decision of the ACT C…
Voth v Manildra Flour Mills Pty Ltd
[1990] HCA 55 Para 69

…Concepts of “balancing” and “weight” were also invoked by the plurality in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565; [1990] HCA 55.…
House v R
[1936] HCA 40 Para 49

…Mr Neil took the position that he needed to demonstrate a House v R (1936) 55 CLR 499; [1936] HCA 40 ( House v R ) error in order to succeed.…
[1992] 2 SCR 226
[1992] 2 SCR 226 Para 73

…CA 223 at [59]-[62], the decision of the ACT Court of Appeal in Moon at [14], and the decision of the Supreme Court of Canada in Norberg v Wynrib [1992] 2 SCR 226 at 246 and 303 ( Norberg ). A number of decisions support the former view, however, including the learned discussion of the issue by Leeming JA in White…
[1984] QB 524
[1984] QB 524 Para 73

…scussion of the issue by Leeming JA in White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [94]-[129]; see also Freeman v Home Office (No 2) [1984] QB 524 at 539; J Goudkamp, Tort Law Defences (Hart Publishing, 2016) at 3.61; SKN Blay, “Onus of Proof of Consent in an Action for Trespass to the Person” (1987…
[1966] 1 WLR 13
[1966] 1 WLR 13

…ey v Holt [2019] NSWCA 102 Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 Norberg v Wynrib [1992] 2 SCR 226 R v Howard [1966] 1 WLR 13 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55…

Legislation cited in this decision · 5

Civil Procedure Act 2005 (NSW)
67 2 mentions (from Para 4)
Crimes Act 1900 (ACT)
81 2 mentions (from Para 32)
Limitation Act 1969 (NSW)
6A(6) 2 mentions (from Para 4)
Crimes (Amendment) Act 1984 (ACT)
1 mention (from Para 7)
Crimes Amendment (Sexual Offences) Act 2003 (NSW)
1 mention (from Para 7)

Medium Neutral Citation:	Gorman v McKnight [2020] NSWCA 20
Hearing dates:	25 October 2019
Date of orders:	19 February 2020
Decision date:	19 February 2020
Before:	Bell P at [1]; Payne JA at [91]; Emmett AJA at [97]
Decision:	1. Grant leave to appeal. 2. Dismiss the appeal with costs.
Catchwords:	APPEAL – whether permanent stay of proceedings should be granted – civil claims arising from alleged sexual assaults up to 40 years ago – where alleged perpetrator dead but had been charged with regard to some of the underlying complaints prior to his death – where perpetrator had admitted some of the acts but asserted that they were consensual – where each of the plaintiffs was a minor at the time of the alleged assaults CIVIL PROCEDURE – historic sexual assault – claim against Estate – where alleged perpetrator dead TORTS – sexual assault – alleged consent – where plaintiffs were minors at the time of alleged consent – whether consent by a minor is a defence to a civil claim for damages for sexual assault
Legislation Cited:	Crimes (Amendment) Act 1984 (NSW) Crimes Act 1900 (NSW) s 81 Crimes Amendment (Sexual Offences) Act 2003 (NSW) Civil Procedure Act 2005 (NSW) s 67 Limitation Act 1969 (NSW) s 6A(6)
Cases Cited:	Bain v Altoft [1967] Qd R 32 Council of Trinity Grammar School v Anderson [2019] NSWCA 292 Dean v Phung [2012] NSWCA 223 Freeman v Home Office (No 2) [1984] QB 524 House v R (1936) 55 CLR 499; [1936] HCA 40 Moon v Whitehead [2015] ACTCA 17 Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 Norberg v Wynrib [1992] 2 SCR 226 R v Howard [1966] 1 WLR 13 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776 White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164
Texts Cited:	SKN Blay, “Onus of Proof of Consent in an Action for Trespass to the Person” (1987) 61 ALJ 25 J Goudkamp, Tort Law Defences (Hart Publishing, 2016) W Page Keeton et al (eds), Prosser and Keeton on Torts (5th ed, West Publishing Co, 1984)
Category:	Principal judgment
Parties:	Trevor Athol Gorman (First Appellant) Ian Alexander Duncan (Second Appellant) Christopher John McKnight (First Respondent) Craig Andrew Channell (Second Respondent) Aaron Gammage (Third Respondent)
Representation:	Counsel: M Neil QC with M Kalyk (Appellants) N Newton with J Horowitz (First Respondent) Submitting appearance (Second Respondent) D Weinberger (Third Respondent) Solicitors: Murphy’s Lawyers Inc (Appellants) Conditsis Lawyers (First Respondent) Brazel Moore Lawyers (Second…