JD v ZYX - [2022] WASCA 136

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   JD -v- ZYX [2022] WASCA 136
CORAM:   BUSS P
MURPHY JA
FRASER AJA

HEARD:   13 APRIL 2022
DELIVERED          :   13 APRIL 2022
PUBLISHED           :   27 OCTOBER 2022
FILE NO/S:   CACV 24 of 2021
BETWEEN:   JD
Appellant
AND
ZYX
First Respondent
WA NEWSPAPERS LTD & CHANNEL 7 PERTH PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BIRMINGHAM DCJ
File Number            :   CIV 874 OF 2019

Catchwords:

Procedure - Civil proceeding - Application for a permanent stay - Delay in commencing the civil proceedings - Loss or destruction of material documents - Whether a trial of the civil proceedings would be manifestly unfair to the appellant as the defendant or an abuse of process

Legislation:

Nil

Result:

Appellant's application for leave to amend the grounds of appeal dismissed
Leave to appeal refused
Appeal dismissed
Appellant to pay the respondent's costs of the appeal, including any reserved costs, to be assessed if not agreed

Category: B

Representation:

Counsel:

Appellant	:	Ms K Nairn QC & Mr M J McPhee
First Respondent	:	Mr T Lampropoulos SC & Mr T J Hammond
Second Respondent	:	No Appearance

Solicitors:

Appellant	:	M J McPhee Barrister & Solicitor
First Respondent	:	Rightside Legal
Second Respondent	:	Steedman Stagg Lawyers

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

Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256
Connellan v Murphy [2017] VSCA 116
Cox v Journeaux [No 2] (1935) 52 CLR 713
House v The King [1936] HCA 40; (1936) 55 CLR 499
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218
R v Edwards [2009] HCA 20; (2009) 255 ALR 399
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392
ZYX v JD [2019] WADC 164
ZYX v JD [No 2] [2021] WADC 20

BUSS P:

I agree with Fraser AJA.

MURPHY JA:

I agree with Fraser AJA.

FRASER AJA:

In March 2019, the first respondent commenced a claim against the appellant for damages for sexual assaults. She alleges the appellant sexually abused her between 1968 and mid-1973, when she was a child. She also alleges her injuries were aggravated by continuing sexual abuse and other misconduct of the appellant between 1974 and 1991, when she was aged between 18 and 36, in respect of which she claims exemplary or aggravated damages. The appellant denies he engaged in the alleged sexual abuse.
An application by the appellant for a permanent stay of the action against him was heard on 10 June 2019 and dismissed by Chief Judge Sleight on 26 September 2019.[1] The first respondent subsequently filed an affidavit disclosing that in 2005 or 2006 she had destroyed diaries relating to the periods the subject of her claim on a bonfire. On 11 May 2020 the appellant brought a second application for a permanent stay of the action. Thereafter the first respondent discovered extracts of her diaries for 1970 - 1974 (and an extract of a notebook for 1974), 1975, 1976, 1982 and 1984. There was evidence there were marks (such as question marks, exclamation marks, and teardrops with the appellant's initials) on particular dates in the diaries which, the first respondent stated, denoted specific kinds of sexual abuse by the appellant, but there was no description in the diaries of any sexual contact between the appellant and the first respondent. Different investigators who had examined the diaries in connection with possible criminal proceedings before some of the diaries were destroyed expressed different opinions about whether entries in the diaries were congruent or incongruent with the first respondent's allegations of sexual abuse. It is not the appellant's

case in this appeal that any evidence, including that of those investigators, would be admissible at the trial as secondary evidence of the content of the diaries that were destroyed.
[1] ZYX v JD [2019] WADC 164.

The appellant contended that in the first stay application the first respondent had been guilty of material non-disclosures of relevant facts and there had been material changes in the circumstances since the first application was determined. The appellant's summons described as grounds of his second application that he had been irretrievably prejudiced by the first respondent's destruction of evidence actually or potentially favourable to the defence, such destruction before the commencement of the action making the continuance of the action an abuse of process, and as a result of the destruction of documents containing evidence favourable to the defence, the defendant has sought orders contained in this summons.
Birmingham DCJ heard the second application over three days in late July and early August 2020. The primary judge found it appropriate to allow the appellant to revisit the question of whether the first respondent's claim should be stayed because relevant matters, most notably the diaries the first respondent had maintained during the period in which she alleged the appellant had engaged in the alleged assaults and other misconduct, were not disclosed by the first respondent on the hearing of the first application. The primary judge found that 20 of 29 diaries kept by the first respondent had been destroyed by her and were no longer available. In March 2021, the primary judge ordered that the application for a permanent stay of the action be dismissed and published reasons for that order.
On 8 April 2021 the appellant filed a notice of appeal against that order. The primary judge had made an order suppressing publication of any report that might tend to identify the appellant or the first respondent. Shortly after the appeal proceeding was commenced this court made a suppression order relating to the appeal proceeding. The second respondent did not seek to oppose that order or otherwise participate in the appeal. The court made a further suppression order relating to the appeal proceeding at the commencement of the hearing of the application for leave to appeal on 13 April 2022.
On 17 August 2021 an order was made that leave to appeal on the grounds set out in the amended appellant's case filed on 3 June 2021 be referred to the hearing of the appeal. The appellant's case relied upon one ground of appeal. On 6 April 2022, the appellant's lawyer sent a letter to the registrar which conveyed that a formal application for leave to amend the appellant's case would soon be made. On 7 April 2022, the registrar directed the appellant to file and serve by 4.00 pm on 8 April 2022 an application in the appeal for leave to amend the appellant's case and a minute of the proposed amended appellant's case. On that date, the appellant filed a document headed 'Minute of proposed amended appellant's case'. The document was filed about an hour and a half after 4.00 pm, but no point is taken about that. The document describes the five paragraphs which comprise its substantive content both as 'Supplementary submissions as attached' and 'Supplementary Appellant's Case'. Paragraph 1 contains the original ground of appeal with a proposed amendment underlined:
1.The Learned Judge erred as a matter of law or mixed fact and law in coming to the conclusion that a fair trial of the issues was still possible notwithstanding the destruction by the Respondent of significant evidence unfavourable to her case in circumstances which make a trial manifestly unfair to the Appellant and/or an abuse of process.
The reference to 'significant evidence' is to the destroyed diaries.
Paragraphs 2 ‑ 5 contain a variety of matters, including reference to what are contended to be errors made by the primary judge, case law, and arguments. It is unclear whether this part of the document was intended to articulate additional grounds of appeal, arguments, or a combination of grounds and arguments. At the outset of the hearing of the appeal the court sought clarification of the case that the appellant sought to make on appeal. After an exchange of submissions, the appellant orally applied for leave to add the following new grounds in addition to the proposed amendment to the original ground of appeal:
2. The Learned Judge erred as a matter of law by limiting his consideration of whether there were grounds for a permanent stay by reason of an abuse of process to the sole question of whether 'the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible' in circumstances where, as a matter of law, this test (contained in the note to Section 6A(5) of the Limitation Act 2005) is merely one example of the grounds on which a Court may permanently stay proceedings.
3. The Learned Judge also erred in failing to consider whether the destruction of key evidence by the plaintiff of itself constitutes an abuse of process requiring the stay of proceedings.
4.Further or alternatively, having identified various matters at [138] and [141], the Learned Judge considered those facts, in the round with all the other relevant facts, in the context only of whether a fair trial was possible (see para 157). He failed to consider whether severally or together with the destruction of the diaries those matters gave rise to an abuse of process, including whether the continuation of the proceedings would bring the administration of justice into disrepute among right-minding people.
The court heard full argument from the appellant on the application for leave to amend and the merits of each ground and heard argument from the first respondent on aspects of the application for leave and the merits of some grounds. After the conclusion of the argument, the court made the following orders:
1.The appellant's application for leave to amend the grounds of appeal is dismissed.
2.Leave to appeal refused.
3.Appeal dismissed.
4.The appellant is to pay the respondent's costs of the appeal, including any reserved costs to be assessed if not agreed.
The court indicated that its reasons would be published at a later date. These are my reasons for joining in those orders.
It is not necessary to embark upon a detailed discussion of the evidence or of the comprehensive reasons of the primary judge. I will give only a brief summary of those reasons that are of particular significance for the resolution of the proceeding in this court. In the introductory section of the primary judge's reasons, the primary judge described the case advanced by the appellant in support of his second application for a permanent stay as follows:
(i)The conduct of his defence of such allegations has been irretrievably prejudiced by reason of the delay in the proceedings and the destruction of important documents, namely the plaintiff's diaries, such that it is no longer possible for the defendant to receive a fair trial; and
(ii)The proceedings are oppressive because they prejudice the defendant's right to silence in the face of a real possibility that the defendant may be charged with criminal offences out of the same alleged sexual abuse pleaded in the statement of claim – that is to say, the prosecution of the defendant in respect of matters arising out of the plaintiff's claim and the proposed propensity evidence to be adduced from [an intended witness in the plaintiff's case] is ‘on the cards'.[2]
[2] ZYX v JD [No 2] [2021] WADC 20 [7].
Under the heading 'general principles', the primary judge set out in full a passage in Bell P's reasons in Moubarakby his tutorCoorey v Holt,[3] which I will quote in part. Bell P derived nine uncontroversial propositions from decisions of the High Court. The first four propositions are that the onus of proving that a permanent stay of proceedings should be granted lies upon a defendant; a permanent stay should only be ordered in exceptional circumstances; a permanent stay should be granted when the interests of the administration of justice so demand; and the categories of cases in which a permanent stay may be ordered are not closed. The remaining five propositions are [71]:
(5)one category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive;
(6)the continuation of proceedings may be oppressive if that is their objective effect;
(7)proceedings may be oppressive where their effect is 'seriously and unfairly burdensome, prejudicial or damaging';
(8)proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party; 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. (citations omitted)
[3] Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218.
After referring to other relevant authorities and describing the issues on the pleadings, the primary judge analysed the evidence relating to the delay in commencing the claim and the loss of the diaries and discussed in detail the significance of the diaries. The primary judge set out s 6A(5) of the Limitation Act 2005 (WA) and the note for it, and observed 'it [was] apparent that whilst Parliament, by removing the statutory limitation period for child sexual abuse cases, accepted that the lapse of time in itself was not sufficient reason for a claim to be barred, the inherent power of a court to stay any proceeding where the effect of a lapse of time is such that a fair trial is not possible was not fettered' [17].
Next, after discussion of authorities concerning the burdensome effect of delay on the defendant and the question of whether the effect was such that a fair trial was not possible, the primary judge described the issues arising on the pleadings and the evidence in respect of the delay and the loss of the diaries. In the next section of the reasons, headed 'Significance of diaries', the primary judge analysed the evidence about the effect of the delay and expressed conclusions, including [66] ‑ [67]:
The critical question … is whether the destruction of the diaries or the loss of some of the diaries has put the defendant at an incurable disadvantage in the conduct of his defence at the trial. It is a factor that has to be considered in the context of all the other matters including the very significant passage of time that has elapsed between the alleged incidents and the commencement of proceedings …
Whilst the diaries are undoubtedly important documents, the question for me is whether the loss of those documents coupled with the period of delay is such as to be so burdensome on the defendant that a fair trial is not possible.
The primary judge referred to submissions by the appellant which described the destroyed diaries as the only evidence capable of objectively undermining, or allowing an objective assessment of the accuracy of, the first respondent's testimony, and as the only evidence providing the appellant with the capacity to reasonably respond to the first respondent's allegations. The primary judge accepted that the loss of the destroyed diaries 'may pose a significant impediment to the presentation of the defendant's defence to the plaintiff's claim' [70] (emphasis added) and the destroyed diaries 'may have opened lines of enquiry and areas for cross-examination of the plaintiff and attacking her credibility' [79] (emphasis added). The primary judge had earlier concluded that the destroyed diaries 'may have led to a line of inquiry that might undermine the plaintiff's case and undoubtedly be a fertile area for cross-examination to challenge the plaintiff's recollection and reliability of her evidence' [66] (emphasis added).
After discussing other matters of relevance to the significance of the diaries and the impact of their loss upon the fairness of a trial, the impact of delay upon memories, the onus on the appellant, and the exceptional nature of a permanent stay, the primary judge observed [81]:
Whilst I am satisfied at this time there is a risk that a fair trial may not be possible, the question is whether a fair trial will not be possible. Can it be said that the continuation of the proceedings at this time in such circumstances may be manifestly unfair even though I am not satisfied on the balance of probabilities that a fair trial will not be possible? (original emphasis)
The primary judge discussed matters bearing upon the fairness of a trial, including the likely requirement of a trial judge to give himself or herself a direction relating to the significant forensic disadvantage suffered by the appellant, the consequences of the delay, and the destruction by the first respondent of her diaries.[4] The primary judge concluded [87] ‑ [88]:
On balance, having regard to the state of the evidence, I am not satisfied to the required standard at this time that a fair trial is not possible such that the plaintiff's claim should be permanently stayed. In the circumstances, whilst the loss of the diaries is significant, I am not persuaded that it will deny the defendant the opportunity to a fair trial.
Accordingly, I am not satisfied that the plaintiff's claim should be permanently stayed on the basis of the delay and destruction of relevant documents at this time. (original emphasis)
[4]The primary judge referred to Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. (That concerned the impact of delay in a criminal proceeding. Such a direction necessarily would be tailored to take into account the relevant circumstances revealed by the evidence at the trial of this civil proceeding.)
Under the next headings, 'Loss of right to silence' and 'Proposed propensity evidence of TT', the primary judge discussed and rejected the second part of the appellant's case, which is described in para (ii) quoted in [12] of these reasons. The primary judge then discussed a different topic under the heading 'Abuse of process - whether plaintiff's claim is private prosecution?'. The primary judge recorded the appellant's contention that the first respondent's action was an abuse of process because it was in substance, if not in form, a private prosecution brought for the improper purpose of reducing the standard of proof to the balance of probabilities and removing the appellant's 'right to silence'. The primary judge analysed the evidence and rejected that contention, finding that the action was a private civil action brought by an individual for the predominant purpose of seeking a civil remedy in damages.
In the final section of the reasons, the primary judge concluded that none of the grounds for a stay had been established when considered separately. The primary judge then observed [157] ‑ [158]:
[T]he proper application of the test must necessarily involve a consideration of all the factors and the combined effect of each of the matters raised by the defendant and their impact upon the defendant's right to a fair trial. Can it be said that the circumstances, when each of the matters are considered either separately or in combination, are such that the continuation of the plaintiff's claim has such a burdensome effect on the defendant that is so serious that a fair trial is not possible?
Whilst accepting that in this case it is a finely balanced decision and others may reasonably come to a different conclusion, having regard to all of the circumstances enlivened by this application, I am satisfied that any unfairness to the defendant can be ameliorated by judicial intervention and direction to ensure that the proceedings are conducted in a manner that is fair to a defendant.
The primary judge concluded, 'having regard to the state of the evidence as it presently stands, I am not satisfied to the required standard at this time that a fair trial is not possible such that the plaintiff's claim should be permanently stayed' [161].

The question of whether the matters of which the appellant complained before the primary judge impinged upon the administration of justice in such a way as to justify a permanent stay required an evaluative judgment by the primary judge. The appellant's appeal attracts the well-known limitations in an appeal against a discretionary decision; the appeal could succeed only if the appellant established that the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration.[5] Although no such specific error may be apparent upon the face of the decision, error might be inferred if the appellant established that the refusal of a permanent stay was unreasonable or plainly unjust upon the facts,[6] but no ground of appeal contends for inferred error and the appellant disclaimed such a contention. It also should be noted that, whilst ground 1 refers to 'mixed fact and law', neither it nor any other ground challenges any identified finding of fact. The grounds of appeal instead contend for errors of principle comprising failures by the primary judge to take into account what are said to be material considerations.
[5] Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256 [7], [72] (Gleeson CJ, Gummow, Hayne & Crennan JJ).
[6] See House v The King [1936] HCA 40; (1936) 55 CLR 499.
Ground 1 is not a viable ground of appeal because it asserts error in the primary judge's evaluative judgment without identifying any specific error. The ground does not describe the error for which it contends or even the circumstances that are contended to make a trial unfair or an abuse of process. Parts of the appellant's argument asserts that the relevant circumstance is an impact upon the administration of justice of the destruction of the diaries. That is contended for in ground 4 and I will discuss it in that context, but it is not contended for in ground 1. Nor did the appellant make good in argument the assertion in ground 1, which is inconsistent with the primary judge's findings in [14] of these reasons, that the destroyed diaries contained 'significant evidence unfavourable to [the first respondent's] case'.
The appellant argues that proposed ground 2 supplies particulars of ground 1, but it does not purport to do so. Despite the reference in the proposed amendment of the original ground to an abuse of process in addition to an unfair trial, the only error for which ground 1 contends is an error in the conclusion that a fair trial of the issues was still possible, whereas ground 2 contends that the primary judge considered only whether a fair trial was not possible for the stated reason. During the hearing, however, the appellant abandoned any contention that the primary judge erred in concluding that a fair trial of the issues was still possible. The appellant thereby abandoned the only contention of error in ground 1.
Ground 2 refers to s 6A of the Limitation Act, which abolished any limitation period for a 'child sexual abuse cause of action', with effect from 1 July 2018. Section 6A(5) of the Limitation Act provides that s 6A 'does not limit ... any inherent, implied or statutory jurisdiction of a court; or... 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'. A note for that subsection provides the example that s 6A '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'.
The example given in the note for s 6A(5) plainly does not confine the circumstances in which a permanent stay may be granted to cases in which a fair trial is rendered not possible by a burdensome effect upon the defendant of the lapse of time. The relevant principles are discussed by Bell P in Moubarak. Bell P also referred to Connellan v Murphy,[7] in which Priest, Beach and Kaye JJA had expressed similar principles. The appellant emphasised an observation in Connellan that abuse of process is not confined to cases in which the defendant would not receive a fair trial. That is uncontroversial.
[7] Connellan v Murphy [2017] VSCA 116.
The appellant argued that the primary judge's statement that it is 'apparent that whilst Parliament, by removing the statutory limitation period for child sexual abuse cases, accepted that the lapse of time in itself was not sufficient reason for a claim to be barred, the inherent power of a court to stay any proceeding where the effect of a lapse of time is such that a fair trial is not possible was not fettered' [17] indicates that the primary judge made the error described in ground 2. That cannot be accepted. The proposition that the primary judge regarded s 6A(5) as a comprehensive statement of the circumstances in which a court is empowered to permanently stay proceedings is irreconcilable with the primary judge's careful consideration of parts of the appellant's case litigated at the interlocutory hearing which did not concern the impact of the effect of a lapse of time upon the possibility of a fair trial: see [19] of these reasons. The quoted statement is simply an accurate précis of an effect of s 6A(5) which was of direct relevance in the consideration of the first aspect of the appellant's case at the interlocutory hearing (see para (i) quoted in [12] of these reasons).
It is apparent from his reasons (including those quoted in [15], [18], and [20] of these reasons) that the primary judge appropriately adopted a conventional approach of considering both separately and in combination the general impacts upon a fair trial of a very lengthy lapse of time (including presumed erosion of memories) and proved loss of specific evidence (relevantly here, the first respondent's destruction of some of her diaries). Whilst it may be implicit in ground 2 that the primary judge failed to take into account an additional basis for granting a permanent stay, ground 2 does not identify any such additional basis.
Unlike grounds 1 and 4, which are directed to an actual or apparent effect upon the administration of justice (of which a fair trial is one aspect), ground 3 contends that an act of the first respondent of itself constituted an abuse of process. The first sentence of paragraph 5 of the appellant's minute filed on 8 April 2022, from which ground 3 was derived, included the word 'deliberate' before the words 'destruction of key evidence'. The appellant accepted in this appeal that when the first respondent destroyed her diaries there was no criminal prosecution in prospect and the limitation period for bringing a civil action had expired. The appellant omitted the word 'deliberate' from ground 3 and disclaimed any contention in this appeal that the first respondent made a conscious decision to suppress or conceal evidence. Despite the expression 'the destruction of key evidence' in ground 3, the appellant's case in this appeal does not encompass any contention that, when the first respondent destroyed her diaries, she believed there might be a future proceeding in which the diaries might be relevant evidence.
This case therefore bears no relevant resemblance to one in which a person deliberately destroys something to prevent it from becoming evidence in an existing or contemplated legal proceeding. The impugned behaviour of the first respondent is nothing more than that she destroyed some of her own diaries. It is not contended that she did so for any purpose which might justify stigmatising her conduct as an abuse of process, or indeed for any purpose or with any intention. The apparently innocuous character of the alleged conduct is not capable of being altered if, inconsistently with findings of the primary judge, it were proved that the diaries would have been 'key evidence' in the proceeding the first respondent commenced many years afterwards. The argument for the appellant does not identify anything that could justify the court in finding that the first respondent's destruction of her own diaries was of itself an abuse of process.
Ground 4 refers to [138] and [141] of the primary judge's reasons, which are in the section headed 'Abuse of process - whether plaintiff's claim is private prosecution?'. Paragraph 138 lists 17 matters the primary judge described as tending to support the characterisation of the first respondent's claim as a private prosecution. Paragraph 141 is in a similar category; it refers to the involvement in the prosecution of the first respondent's civil proceeding of police officers who had previously investigated possible criminal proceedings against the appellant. The contention in ground 4 is that the primary judge erred by failing to consider whether those matters, considered together with the destruction of the diaries, established a basis for a permanent stay other than the rejected contention that a fair trial was not possible.
In argument, the appellant proposed as a different basis for a permanent stay that the possibility of a fair trial was so extremely unlikely as to justify a conclusion that the proceedings are an abuse of process. That is not within the appellant's case as it was described by the primary judge in the passage quoted in [12] of these reasons. The appellant should not be permitted to run a new case on appeal. If, despite the absence of any direct challenge to that description of the appellant's case, this argument was litigated, it nevertheless should not be considered on appeal because no notice of it was given in the original ground of appeal or even in the amended grounds of appeal.
In any event, the appellant's argument does not support the ground. The appellant argued that the primary judge erred by imposing a requirement for a permanent stay that a fair trial be 'absolutely impossible'. The adjective does not add anything to the submission. At various places in the reasons the primary judge described the question as being whether, upon the evidence before the primary judge, a fair trial will not be possible. The primary judge was of course required to decide the case upon the evidence adduced in support of the stay, notwithstanding that a trial judge might subsequently be persuaded to revisit the topic if additional or different evidence then established a basis for doing so.
The test applied by the primary judge was also conventional. In Cox v Journeaux [No 2],[8] Dixon J explained that to justify a permanent stay of a proceeding in the exercise of the inherent power the defendant must establish that to permit the proceeding to proceed to trial 'would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party'. In Batistatos (to which the primary judge referred), the plurality quoted that statement with approval and applied it when affirming the decision of the Court of Appeal of New South Wales that the burdensome effect upon the defendants arising by lapse of time was 'so serious that a fair trial was not possible' and that permitting the plaintiff's case to proceed 'would clearly inflict unnecessary injustice upon the defendants' [69]. These and other decisions to similar effect are reflected in the passage the primary judge quoted from Bell P's reasons in Moubarak.
[8] Cox v Journeaux [No 2] (1935) 52 CLR 713, 720 (Dixon J).
That is not to deny the possibility that in an appropriate case a permanent stay might be justified even though the defendant established only a risk that a fair trial would not be possible, but it would remain necessary for the defendant to point to circumstances which required the conclusion that the continuation of the proceedings would involve unacceptable injustice or unfairness.[9] But the appellant's argument does not explain how that test might be satisfied in this case.
[9] See Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392 (Mason CJ, Deane & Dawson JJ); R v Edwards [2009] HCA 20; (2009) 255 ALR 399 [22] ‑ [24] (Hayne, Heydon, Crennan. Kiefel & Bell JJ); Connellan [54]; Moubarak [88].
On the facts found by the primary judge, there is no basis for thinking that the loss of the destroyed diaries would contribute to oppression or any other form of unfairness or injustice to the appellant in the proceeding continuing to trial. There is, for example, no ground for finding that the loss of the destroyed diaries would render the proceeding more expensive or arduous for the appellant than otherwise would be the case. Any adverse effect upon the appellant of the loss of the destroyed diaries would appear to be confined to the loss of any forensic advantage at the trial which the destroyed diaries might have provided, but the primary judge was not satisfied that the loss of the destroyed diaries considered together with other relevant factors would result in the trial being unfair. The appellant pointed to evidence to the effect that the detailed statement of claim was substantially derived from a deposition by the first respondent, which was itself derived in part from the destroyed diaries. This was argued to create a forensic disadvantage for the appellant, but the statement of claim is not admissible as proof of the allegations in it and the trial judge's powers will extend to ensuring that the deposition is not misused.
Nor is the appellant's case advanced by the reference to [138] and [141] of the primary judge's reasons. The matters in [138] mostly comprise past communications by or on behalf of the first respondent and by police officers designed to persuade authorities that the appellant should be prosecuted and responses to those communications, and [141] concerns the involvement of former investigating police officers in the first respondent's prosecution of her civil claim. Putting aside the rejected 'private prosecution' argument, the matters in those paragraphs do not upon their face seem likely to be productive of any unfairness or injustice to the appellant in the continuation of the civil proceedings up to or even at the trial, much less such unfairness or injustice as could justify the very strong step of ordering a permanent stay of the proceeding. Again, the appellant's argument does not explain why the loss of the diaries would have any such effect.
The orders made after argument at the hearing of the appeal were appropriate in light of the absence of apparent merit in the proposed grounds of appeal, the lateness of the application for leave to amend the grounds of appeal, and the circumstance that after a trial on the merits the appellant will retain the right to appeal upon the ground that a permanent stay should have been granted.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BS
Associate to the Honourable Justice Buss
27 OCTOBER 2022