Joanne Edith Willmot and the State of Queensland

[2024] HCATrans 31

[2024] HCATrans 31

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B65 of 2023

B e t w e e n -

JOANNE EDITH WILLMOT

Appellant

and

THE STATE OF QUEENSLAND

Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 MAY 2024, AT 10.00 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends MR G.R. MULLINS, KC, MS S.D. ANDERSON and MR P.M. NOLAN for the appellant.  (instructed by Littles Lawyers)

MS C.C. HEYWORTH‑SMITH, KC:   May it please the Court, I appear with my learned friends MR D.J. SCHNEIDEWIN and MS K.E. SLACK for the respondent.  (instructed by Crown Law (Qld))

GAGELER CJ:   Thank you, Ms Heyworth‑Smith.  Mr Walker, before you begin, I say for the benefit of the respondent in this matter, and the respondent in the special leave application which is to follow, that if there is to be any challenge to any aspect of the reasoning of the majority in GLJ, it will be considered by the Court in the course of its reasons, but the Court will expect that challenge to be clearly articulated.

MR WALKER:   Yes.

GAGELER CJ:   Thank you.

MR WALKER:   And could I say, apropos that, that as we read our friends’ written submissions as to the argument, in its text there is no such challenge.  It may be that literally a footnote or two might cause a flutter in that regard, but none of the written argument against us canvasses to any degree what we understand to be the relevant holdings for today of GLJ.

GAGELER CJ:   Thank you.

MR WALKER:   It need hardly be said, neither have we seen any hint of an explanation as to why a reopening would be permitted.  Your Honours, may I start, then, with what we submit this Court has ruled flows from the enactment of the more or less uniform legislative responses to the Royal Commission findings about the social injustice thought to be manifest in cases such as our client’s.

In this case, the Queensland version is section 11A of the Limitation of Actions Act 1974.  I need not take your Honours to the text; it is the same as section 6A of the New South Wales provisions considered by the Court in GLJ.  It is, of course, the provision within that huge change to this kind of litigation which stipulated that the provisions would not limit powers of the court with respect to – among other things – permanent stays.  That is at the heart of both the GLJ reasoning and the holding from it, and the issues in this case.

As you can see from our first proposition, there are matters, we say, to be gathered from the way in which the reasoning for the decision in GLJ has been expressed which must be taken into account in applying under the correctness standard the appellate review of the decision that there was threatened an abuse of process with respect to a prospective trial being unfair such as to require a permanent stay.  We draw to attention two of the several ways in which the nature of the change wrought by the statute has been described by the Court.  There is a new normative structure, and that normative structure is normative because it engenders a correlative obligation on the part of the courts to observe what, following the Royal Commission, was intended by the enactments in question.

It is normative because, in particular, it embodies values concerning the doing of justice which, of course, is a pervasive and irreducible element of the decision as to whether there is threatened an abuse of process by a prospective trial of the kind that the parliaments have said can be had.  In particular, can I remind your Honours that the decision of this Court is that what was called “a new world” relevantly was created, the subheading above paragraph [29] in GLJ 97 ALJR 857, 869 the particular passage.

In particular, at paragraph [40] of the reasons, the new context is recognised for the exercise of the jurisdiction to exercise the power which includes a permanent stay.  The legislative response which calls for “judicial fidelity” – to quote from paragraph [40] – within the new normative structure is a response to the legislative judgment that the existing limitation period worked an injustice to a certain class of people.  A class of people, whose vulnerability which called for that value judgment by the legislature to be honoured by the judiciary, vulnerable because, in particular, of their childhood at the time of the misconduct in question.  Of course, it is well recognised by reason of the near‑universal postponement of the running of the limitation period until the end of minority that, in any event, claims by children may be heard much later after the events than claims by adults in the ordinary course.

The particular sequelae of the kind of misconduct in question, recognised by the Royal Commission and then taken up by the legislators who enacted provisions like section 11A, include, of course, conditions which in themselves tend against or present an obstacle to the assertion or vindication of rights to recompense following such misconduct. As we have noted and quoted in proposition 1, it needs to be appreciated that there is something fundamental about that change and that it is a radically new context. These are not minor adjustments – see paragraph [43] of the reasons in GLJ.  If one then goes over to combine paragraph [43] with paragraph [38], one sees that the expression in paragraph [43], namely:

Specifically, the effect of the passing of time in such a case –

That is a case caught by these new provisions:

is to be evaluated on the basis –

That is, evaluated for the purpose of applications for a permanent stay, for example:

that it will be neither uncommon nor unexpected –

I interpolate, that is, of course, in order to contrast it with the former characteristic of something being extreme or exceptional as a foundation for granting a permanent stay:

for the circumstances that the limitation period sought to avoid to be encountered.

That expression “the circumstances that the limitation period sought to avoid”, of course, are those which are noted in the passage that the Court cited in paragraph [38], itself cited by Justice Bell in Moubarak from Lord Sumption’s reasons in Abdulla, and, in particular, the evocative and important phrase:

Delay impoverishes the evidence available to determine the claim –

et cetera. So, those are the circumstances that the limitation period sought to avoid, and they are circumstances which are now to be evaluated on a quite opposite basis from what formerly obtained or were detained in cases that are not within the protective cloak of section 11A. To put it another way, the natural expectation that the courts have long recognised concerning the fallibility of memory being likely increased rather than reduced by the passage of time is something which section 11A contemplates needs to be dealt with by trials.

STEWARD J:   Mr Walker, do you say that the majority’s reasons go so far as to support the proposition that any impoverishment of evidence is neither here nor there?

MR WALKER:   No.  That cannot possibly be the case.  There is nothing in the reasons to suggest that so long as the respondent to such a motion can say:  you are complaining about impoverishment of evidence, therefore I win.  There is nothing to suggest that, and I do not wish to advance any such argument which would be extreme and utterly opposite to the proper judicial method, which is to decide such cases according to the facts of each particular case. 

Or, to put it another way, there are what might be called the ordinary consequences of passage of time which, but for a provision like section 11A, may well conduce in favour of a permanent stay which will no longer do so because of the new normative context. But each case will depend upon its own facts ‑ ‑ ‑

GLEESON J:   That is a little different from what you have said at paragraph 1 of your outline, is it not?

MR WALKER:   No, your Honour.  It will no longer be possible simply to say there is impoverishment of evidence and therefore that is a case for the exceptional decision to permanently stay proceedings.

GLEESON J:   I see.  So, it is a matter of the nature of the impoverishment in a given case.

MR WALKER:   There is character of, but also it may be extent – but more to the point, one will probably look also for what might be called degrees of responsibility in a general sense of the parties respectively for that state of affairs and for – to quote from our friends’ submissions – the possible amelioration one way or the other by somebody’s activities with respect to it.  Those are matters where case‑specific facts will come into it.  What we are saying in proposition 1 is that it will never be enough simply to say there is impoverishment of evidence.

STEWARD J:   It has never been the case that that mere assertion would be enough, but do you say that the majority accepted the submission that was put by senior counsel for GLJ that there should be greater “tolerance” of impoverishment of evidence?  That was his word.

MR WALKER:   Yes, but you do not find that in the reasons.

STEWARD J:   So, you would say the reasons change ‑ ‑ ‑ 

MR WALKER:   I am sorry, I ‑ ‑ ‑ 

STEWARD J:   I beg your pardon.

MR WALKER:   ‑ ‑ ‑ did not answer your question.  You do not find that formulation by counsel in the reasons, and one needs to distinguish between the attitude taken by the Court in an application for a permanent stay on the one hand and an attitude taken at a trial or after a trial by the finder of fact, the judge.  In our submission, what this case is about, what GLJ was about, is, of course, the first, not the second.  The second may or may not arise in a case one day for consideration, probably by this Court, but not in this case, and not in GLJ.

STEWARD J:   So, just to labour the point – and I am sorry – Lord Sumption’s reference to the impoverishment of evidence, that has not changed on your view of the majority’s reasons?

MR WALKER:   No, that is one – indeed, the first to be mentioned – of:

the circumstances that the limitation period sought to avoid –

to use the language of paragraph [43].  That does not go away.  “Impoverishment” is a striking word, but it is the word used.  Our point is simply this:  the Court has, in GLJ, not used notions of tolerating things so much as referring to the contemporary values enshrined in the new statute, which says with respect to prospective fairness or unfairness, to place the onus of the application on the defendant, in light of the legislative decision that the previous situation, was unjust – substantively unjust.

EDELMAN J:   If the level of impoverishment of the evidence is such as to have the effect that a trial would be unfair, would you accept that on the approach of the majority in GLJ there would have to be a permanent stay?

MR WALKER:   Yes.

EDELMAN J:   How, then, has that changed from the test prior to GLJ?  It is not the case that a trial that would have been unfair prior to GLJ has become fair after GLJ, is it?

MR WALKER:   Your Honour, in truth, we say, only slightly rephrased, there has been such a change.  So, if I could remind you, in paragraph [47] there is recognition that the very matter which engendered unfairness, long delay, has been removed as a reason not to have a trial.  True, it has been removed by the device of abolishing any limitation period, but what the Court said in GLJ is that that has produced the new world in which one is to contemplate trials being had, notwithstanding the existence of circumstances of a kind that the limitation period formerly, or, in the cases where 11A does not protect a plaintiff, the limitation period sought to avoid.  That includes, among other things, impoverishment of evidence as well as uncertainty, et cetera, et cetera.

So, the last sentence of [47] requires an evaluation of “contentions of abuse of process”, that being the relevant rubric for the ground of permanent stay in a case such as this within this new normative structure.

STEWARD J:   What does that mean, though?  We accept that as a result of the Royal Commission that the limitation was removed because it was regarded as unjust – that is clearly so.

MR WALKER:   Yes.

STEWARD J:   But what does all of that now mean in terms of the tests for applying for a stay in cases of claims of this kind?

MR WALKER:   As we say in the second sentence of our proposition 1, it does mean that there are some cases which would have produced a stay without 11A will not produce a stay with 11A for the reason that aspects of the trial process and ultimately the adjudicative exercise at the end of it can now be recognised as not producing at trial unfairness requiring a permanent stay because of the legislated alteration radically and fundamentally in the interests of justice – substantive justice – with respect to these kinds of cases.  In other words, I think your Honour used to me the word “tolerance”, the only reason I jib at that ‑ ‑ ‑ 

STEWARD J:   That is the word your opponent used.

MR WALKER:   Quite.  The only reason I jib at it is that one tolerates what might be called a vice or a defect, and we would not accept in the “new world” that such cases are being brought many, many, many years after the misconduct is to be regarded as a vice or a defect, or at least it pales into insignificance compared to the vice or defect socially of such misconduct having occurred in a milieu which may have involved breach of duty of care – say, by the State, as we wish to allege – and which by reason of limitation periods or the former jurisprudence ‑ ‑ ‑ 

STEWARD J:   Is there not some circularity in that reasoning?

MR WALKER:   I hope not.

STEWARD J:   I mean, you are saying that misconduct has occurred.  We are here to decide whether it has or has not.

MR WALKER:   No, I am so sorry, I meant in a case which alleges that such misconduct has occurred, following Royal Commission and legislative judgment, that such misconduct has ‑ ‑ ‑ 

STEWARD J:   Generally, yes.

MR WALKER:   ‑ ‑ ‑ as a social phenomenon historically occurred and is to be regarded as so unjust socially that it requires an adjustment of the judicial – that is, forensic – response to late claims.  That is the new normative structure, what should be done alters by reason of this statute.

STEWARD J:   But the relevance of impoverishment of evidence has not changed.

MR WALKER:   The impoverishment of evidence is still a prime way in which a permanent stay may be justified.

STEWARD J:   So, has its role changed or not?

MR WALKER:   Yes, it has.  It is no longer to be regarded as breaching the extreme or exceptional point of justifying a permanent stay so readily in these cases as would have been so formerly – that is, without 11A.

STEWARD J:   Is that another way of saying “greater tolerance”?

MR WALKER:   Yes, yes, and that is why I – I do not like the word because it suggests ‑ ‑ ‑ 

STEWARD J:   I understand.

MR WALKER:   ‑ ‑ ‑ that there is a vice in having a trial many years after the event of cases where Parliament says, generally speaking, they should be had.

GORDON J:   Does your phrase “impoverishment of evidence” include matters identified by the majority at paragraph [50] – that is, it extends to fading memories, loss of evidence, whether it be by way of death, illness, infirmity, et cetera?

MR WALKER:   Yes, yes.

GORDON J:   It covers what I will call the entire spectrum of availability of evidence.

MR WALKER:   Yes.  In particular, I was going to draw to attention the last words of paragraph [50], which describe:

as routine and unexceptional sequelae of the harm caused by the alleged act –

as being a way in which the statute recognises, in order to confront or remedy the substantive injustice of such historical child abuse, that it actually has an organic relation to the very thing which, under a former regime, would have been used against a plaintiff by way of founding a permanent stay.  The parliamentary judgment is, in our submission, understood in light of the reasoning in GLJ.

GORDON J:   I am sorry, in response to you answer to Justice Steward, are we to take the submission that the Court is to approach failing memory and the loss of evidence across a spectrum with a greater tolerance in dealing with these cases of this nature?

MR WALKER:   Yes, that is right. 

EDELMAN J:   That has all arisen because of section 11A?

MR WALKER:   Yes.

EDELMAN J:   Is there any role, then, in determining the extent to which the increased tolerance should be given for the principle of legality?

MR WALKER: Yes. That is why I answered your Honour’s question as I did. It is the evaluation of “unfair” which is altered by section 11A. That is why greater tolerance is not – however much I jib at it, it is not really an inappropriate way of describing, in a shorthand fashion, how the new normative structure, the new context for such applications for proceedings like this is to operate.

EDELMAN J:   In the one direction, there is this policy of section 11A that pulls in favour of an increased tolerance, but in the other direction, the principle of legality pushes against it.

MR WALKER:   Yes.  It is not just the principle of legality – which, if I may say so, is not exactly a pinpoint principle.

EDELMAN J:   Yes.

MR WALKER:   It goes to the heart – and I am not trying to constitutionalise anything – of the exercise of judicial power which is definitionally for the administration of justice, which is definitionally a process that has – I do not mean this offensively – a modicum of fairness.  Nothing is perfect, and some unfairnesses can be dealt with on the run, some can be remedied, some are not material, but by and large it is a hallmark of justice that it is fair.  It is the prospective unfairness of a trial which informs the labelling of the prospect of an abuse of process that produces one of the foundations for the grant of a permanent stay. 

What the statute has done is to say, in particular, by removing cases where the forensic circumstance about the availability of evidence is, as it is in our case, for example, the passage of many years – it removes that from the position of being exceptional or extreme.  It is what Parliament intended, and it is not for the Court to say that what Parliament intended –in the absence of a constitutional challenge, that is – cannot be done.  Sorry, we see you want to have trials, but you cannot have trials, because by removing a limitation period, you have appeared to permit trials that ought definitionally not be had.

So, when your Honour asked me if a trial is unfair, I mean “unfair” according to the lights which are preserved by the not‑limiting provision in section 11A. Of course, that not‑limiting provision cannot be, if you like, an exceptional qualification that destroys the intended reform, and there is a real danger that if one does not recalibrate the notion of an unfair trial in such cases – where you are balancing the substance of injustice of abuse in childhood with the forensic concern for the capacity to have a fair trial – if you do not recalibrate, then, of course, you will have the supposed qualification or exception destroying the new rule and depriving it of any of its intended efficacy.

JAGOT J:   No one would suggest the word tolerance, which does not appear in the reasons – it is not a suggestion of a greater tolerance of unfairness, it is a suggestion that the context has changed in which the process of evaluation of fairness and unfairness has itself altered, that is all.

MR WALKER:   Exactly.

JAGOT J:   Which always depends on the facts.

MR WALKER:   Of a particular case.

JAGOT J:   Yes.

MR WALKER:   Yes, but now the cases in question, governed by 11A, are cases which Parliament has legislated are not to be denied a trial by reason of the lapse of time, noting that the lapse of time and limitation periods have, as the first to be named in the circumstances or consequences to be avoided by having a limitation period, the so-called impoverishment of evidence.  No, we are not saying that this is a statute that has authorised unfair trials.  Yes, we are saying it is a statute which alters the proper way to evaluate the fairness of a trial of a particular kind. 

GORDON J:   Can I ask one more question on this topic, and then I will be quiet.  In the note to the section, it refers to “burdensome effect”, picking up the language of the earlier authority.  Is what you have just put in answer to Justice Jagot consistent with that kind of analysis?

MR WALKER:   Yes, we say so.

GORDON J:   The reason why I ask is in CM [2023] NSWCA 313 Justice Leeming went through and analysed it and seemed to question whether that was right.

MR WALKER:   Yes, well, what I have put is the argument that we submit flies.

GORDON J:   And does that mean that in picking up that process of analysis of “burdensome effect”, and taking into account the passage that we looked at in GLJ at paragraph [50], one has “greater tolerance”, to pick up the language, not for unfairness but greater tolerance for lack of memory, greater tolerance for - - -

MR WALKER:   That is right.  That is right.  I am sorry, your Honour, I interrupted.

GORDON J:   It is fine, thank you.

MR WALKER:   I do apologise, your Honour. 

GORDON J:   It is fine.

MR WALKER:   But, I think, yes is my answer.  Could I then remind you, linked with the way I have tried to answer your Honours’ questions, how this Court, obviously concerned with matters of fairness, then turned to the way in which what are probably the inevitable imperfections for every trial, even one heard very soon after the event – if the event was one, say, that caused the death of a key witness or even a party – in what might be called the recognised, established and workable techniques of common law courts.

In paragraph [56] for example, something which is to the forefront in our submission of consideration in this case, which is trite but very important, is where the onus lies.  In paragraph [58] there is, of course, the evergreen and case‑specific application of Blatch v Archer, which does not need elaboration.  In paragraph [59], there is the, with great respect, justly famous discussion of something very ordinary by Mr Justice McLelland in Watson v Foxman concerning the fallibility of memory.

Those are matters which, if anything – bearing in mind onus – tend against the plaintiff.  They make the fluid through which you wade to your destination somewhat thicker.  They also, of course, are hallmarks of fairness in adjudication.  Their application is not to be deprecated because, for example, they are called up most stringently in what might be called ancient cases.

In paragraph [60], there is the emphasis which is a companion piece to the onus of proof, and which is informed by Blatch v Archer and Watson v Foxman.  There is the need for what has become known as actual persuasion.  It is not a formalist exercise of evaluating evidence, it requires, ultimately, an actual state of mind on the relevant standard of proof.  The passages from which quotations are included in paragraph [60] are all of, with respect, classical expositions of a state of affairs which, if anything, tends to tell against a plaintiff.

I do not mean that the onus is in some way more difficult, and I do not mean the standard changes, but bearing in mind all the matters that those familiar common law techniques involve, I do mean that these are ways in which substantive fairness and procedural fairness, as one would have them do, coincide in relation to the presentation, testing and consideration of evidence.

STEWARD J:   Do you suggest, Mr Walker, that the reasoning of the majority goes so far as to mandate – I will use that phrase “greater tolerance”, notwithstanding its difficulties – that the greater tolerance principle will apply at the eventual trial, or that ‑ ‑ ‑ 

MR WALKER:   No, no – that is what I was saying is not today ‑ ‑ ‑ 

STEWARD J:   Yes.

MR WALKER:   ‑ ‑ ‑ and is not GLJ.

STEWARD J:   So, the tolerance is simply for the stay, not for the trial.

MR WALKER:   It is of the prospective trial.

STEWARD J:   Yes, I see.

MR WALKER:   That, with respect, is very significant, because, as I have been saying, the common law techniques which prevent the court from being powerless to recognise, among other things, the consequences of what I will call impoverishment of evidence, are techniques which, if anything, tend against a plaintiff.

BEECH‑JONES J:   Mr Walker, is this any different to saying, putting aside the word “tolerance”, that the degree of impoverishment necessary to ground a stay must, post‑GLJ, be considered within the framework that Parliament has not specified any limitation period, and the policy that accompanies those is not adopted?

MR WALKER:   Yes.  That is right.  I hope it is saying a bit more than that, but that is a conclusion we draw from our argument and respectfully advance to this Court.

BEECH‑JONES J:   So, when we are talking about impoverishment, it is what type, and what extent?

MR WALKER:   Yes.  Which is why nothing in GLJ says there will be no more permanent stays of these cases.  Nothing says that.

STEWARD J:   Can I ask, as a matter of fairness, at [142] I quoted from the Commission, where the commissioners said:

Removing limitation periods may create a risk that courts will interpret the removal as an indication that they should exercise their powers to stay proceedings in a more limited fashion.  We consider that it should be made clear that the removal of limitation periods does not affect the courts’ existing powers –

Is that not against ‑ ‑ ‑ 

MR WALKER:   So, that is not going – first of all, that is not talking about the ultimate adjudicative exercise at the end of a trial.  It is very much looking at what I call the threshold or gateway question to a trial.

STEWARD J:   That is why they have included subsection 11A(5) and the equivalent in section 6A.

MR WALKER:   The no‑limit provision, yes, “does not limit”, yes.

STEWARD J:   Does not limit the – yes, exactly.  Were they not going out of their way to make it clear there is to be no change?

MR WALKER:   Whatever they meant in that passage, which is not by a parliamentary draftsman let alone enacted, they could not be meaning:  we should enact something which would take away via subsection.  They could not be saying that.  The whole of their report is imbued with what I might call an urgent consciousness of a great injustice.

GLEESON J:   No one is suggesting that.

MR WALKER:   I am sorry?

GLEESON J:   That is a straw man, Mr Walker.  No one is seriously suggesting that subsection (5) takes away the significance of subsection (1).

MR WALKER:   Your Honour, I accept that entirely.  I was responding to Justice Steward’s question about what the commissioners meant and to what extent that ought to affect an understanding of 11A, and what I am saying is one thing it does not mean is that the abolition of limitation periods does not make a difference.  Now, all we are saying in this case, and what the Court said in GLJ was, it also – it obviously – makes a difference to the prospect of having trials of a kind that would formerly be statute‑barred.

They are now not statute‑barred, but Parliament has not gone through the vain attempt to remedy a social injustice by removing a statute bar but leaving in place what I will call a case‑by‑case procedural way.  Or, to put it another way, Parliament has not said there can be trials, but there will not be trials because that would be unfair.  That, I hope, is not a straw man.  It is a very important way to appreciate the effect of the reasoning in GLJ, which, of course, is directed precisely to the question of the approach to a stay.

In our submission, the common law techniques that I am in the course of referring to as the subject of the reasoning in GLJ are ways in which, concerning the prospect of a trial – fair or not – in this new context, the court can be satisfied that cases that once upon a time would have been too stale will not always be so under 11A.  They may be, depending upon character, degree and, perhaps, party responsibility, but none of those matters, in our submission, are brought to bear upon the facts of our case.  So, we submit we are in the body of cases plainly contemplated by Parliament as cases where trial should be possible, notwithstanding the lapse of time.

Those techniques then – if I could draw to attention the way the Court addressed another aspect of them in paragraph [61].  Again, I do not need to dwell on the detail of that.  They are matters which, as you might as expect – bearing in mind the allocation of onus, if anything – tend against a plaintiff, but that does not mean there should not be a trial.  Indeed, they are matters which, both procedurally and substantively, are the court’s response – Blatch v Archer being the underlying notion – to the quality in a particular case of evidence, bearing in mind who has to prove what.

Now, there is another observation which is not really so much a common law technique as a commonsense observation, which your Honours will have noted gets a footing in what might be called all the cases in this area of child abuse, because some child abuse is within family and friends – that is, totally private – and much child abuse, as the Royal Commission established, is in what has come to be called an institutional setting, be it governmental, church, charity, schools, et cetera.

In paragraph [64] the Court points out, and this is not a rule or principle but a commonsense observation about aspects of cases that may, in a particular case, assume some significance, and, in particular, one sees there the expectation that in an institutional context there will be or, as a very important observation, there ought to have been records, et cetera.  So, a systems case is not to be defeated by a defendant saying, in fact, I gave no instructions for the child’s care, and I kept no records of complaints, therefore I cannot now, forty years later, be fairly a defendant in a case.  That is, obviously, one of those areas where party responsibility would be a reason to have a trial but, of course, the plaintiff will still have to overcome the usual admonitions about the gravity of allegations, the nature of evidence, et cetera, et cetera.

Could I then move, still in the GLJ reasons, to the approach one sees in paragraph [74], [75] and [76], where a significant aspect of the proper approach to complaints or fears expressed by defendants in such applications is to ensure that there is not an inappropriate weight given to what is ultimately speculative.  I do not mean that anything which predicts the future is speculative, that is absurd in a jurisdiction which, after all, looks to a prospective trial.  I am saying that what the Court is reasoning in those paragraphs is an example of certain possibilities or fears not acquiring sufficient concreteness to bring about the drastic effect of a case, formally statute‑barred, now not statute-barred, not being able to go to trial.

In our submission, that is the effect of the holding and reasons in GLJ as they are applicable in our case.  At the heart of the notion of unfairness in the argument against us, and to a degree in the reasoning in the Court of Appeal – which, of course was done under a different appellate test – but at the base of the argument against us are entirely correct propositions about the significance of what I will call party participation in adversarial litigation.  There cannot be any doubt about that, and it is no part of my argument to suggest that 11A has the effect of hogtying defendants, institutional or otherwise.  But, in our submission, some of the epithets that have been used in former jurisprudence, such as “passive bystander” or “entirely in the dark”, et cetera, need to be, in our submission, considered case‑by‑case with perhaps a more sceptical eye than the respondent would invite.

In particular, when one considers that this is the State under an extraordinary regime of a species of wardship of persons in my client’s position, the notion that there is, as it were, a paucity of records is not something which is a matter of fairness either of trial or of substantive outcome. It should redound to the detriment of my client under trials to be conducted by reason of the facility promulgated by section 11A.

STEWARD J:   But no one is to blame if there are no records available due to the expiration of time, it is just a fact.

MR WALKER:   It may be a fact, but if one is talking about a State with respect to something close to the heart of a State’s obligations – the care of children, particularly children that are susceptible of forceful taking into care – then, in our submission if, say, the government had all its Aboriginal protection documents in warehouse below a flood line, it is going to be a terrible thing for the loss of those documents to provide that defendant with a reason not to have a trial of recollections, where people can give recollections.

Now, there is a case where, without anything that one might call fault or blame or breach of the law, one can easily say, it is not the plaintiff’s fault that those documents, which are of historical significance, and should have been in the warehouse above flood level rather than below, that ought to be relevant to evaluating the fairness of the trial.

GLEESON J:   Mr Walker, it is not – we are not just dealing with the situation of the plaintiff versus the defendant, we are also dealing with the situation of the court and the legitimacy of the court.

MR WALKER:   Yes, yes.  I am not trying to put the court to one side.  In terms of the adversarial analysis, which we accept as we must, you start with the parties and the court is there with a role ultimately of adjudication.  Now, I know there are roles preparatory to that, such as admissibility of evidence and control of a trial, but the purpose of a trial is to permit an adjudication.  The process has to be fair in order that the adjudication has the quality of the administration of justice as opposed to an arbitrary decision.  We accept all of that. 

What I am saying is that by reason of 11A, it is accepted as being, so to speak, usual or common that there will be effects such as perhaps the loss of documents, which is common in both governmental and private enterprises, and that should not be regarded – bearing in mind that it is Parliament who has said – and Parliament knows better than anyone about lost records – there will not be a limitation period, it is Parliament who has said that this substantive injustice needs to be fixed and it is a terrible thing that trials are not being had because of the effluxion of time.

STEWARD J:   But Parliament has also said that the section does not limit the course of jurisdiction to stay.

MR WALKER:   I do not want to repeat what I have said, but, your Honour ‑ ‑ ‑ 

STEWARD J:   I know, but the two go together.

MR WALKER:   They do go together.  In fact, I derive support for my argument from the fact that they are together.  Because they are together, one does not follow another, say, after a change of government.  Because they are together and read together, it has to be that the substantive reform – the “new world” – is one which contemplates trials being had which formerly perhaps would not have been had.

In our submission, as part of that reasoning – bearing in mind that the recalibration that the Court has said 11A calls for – it is therefore all the more important that these so‑called common law techniques – some of them common sense, some of them a bit more – are available, all significantly tending against the party with the onus, the ultimate onus, at trial and in a way which obviously permits a court to decide fairly.  That, ultimately, is the whole purpose of a fair trial, to enable decision fairly.

Now, everyone accepts, we think, that a trial is not rendered unfair because of unwilling, missing or dead witnesses.  Everyone accepts that.  One only needs to contemplate civil cases arising out of car crashes or criminal cases in which not everyone who could cast an evidentiary light on an event is willing or available to do so to appreciate that it has never been the case that perfection is the standard of a fair trial, let alone perfection in terms of full and intelligent access to the memories and archives of persons or institutions interested in the case.  In other words, you do the best you can with what you have, and that is not a hallmark of unfairness.  To the contrary, it is a hallmark of the fact that justice is being administered in a society of humans.

It is for those reasons, in our submission, that when one looks at the arguments against us, the notion that the respondent could possibly be seen as a passive bystander in a prospective trial is immediately dispelled by the catalogue in ways in which they advance objections to the possible future discharge of her onus of proof by our client.  They do not take the attitude, we do know what to think about this claim and we can say nothing against it – that would be a passive bystander.  We have drawn to attention – I do not need to elaborate the point more as to the way in which the respondent demonstrates, even in its answer to our attack on the permanent stay, the active role it would intend to take at a trial.

That brings me to the third proposition, which is related.  One does need to distinguish between the question of the fairness of a trial and whether or not it is possible for the plaintiff to succeed.  It is obvious, one hopes, that it does not contribute one jot to an assessment of the unfairness of a trial to say it is possible the plaintiff may win.  That is to be distinguished from saying, it would be unjust, an abuse of process, for there to be a trial which a plaintiff may win because of particular circumstances.  That is the particular way in which the matter should be approached.

We have already pointed out that the passage of time, the fading of memory, perhaps the absence of records, perhaps even – though we would not embrace this – what the respondent points to with respect to what I will call “corroboration”, it has to be said that all of those are matters which techniques, developed and available long before 11A was enacted, can be deployed at the prospective trial. 

GORDON J:   Can I ask you just one question about what you just put about the merits.  There is no assessment of the merits in terms of the outcome of the trial, and there is also no assessment of the merits in the sense of, is there an application to strike it out for want of a cause of action or it otherwise not disclosing a cause of action so that one is looking at it in a context of the way in which you put it, I think, and that is:  is there unfairness in the process giving rise to the way in which the trial might be conducted, having regard, specifically, to the causes of action pleaded?

MR WALKER:   That is right. 

GORDON J:   Just to make it clear – if one was looking at it on the strike‑out, one, of course, would take the pleading at its highest and deal with it on that basis.

MR WALKER:   Yes.

GORDON J:   That is the second question, after assuming no stay is granted.

MR WALKER:   That is right.  And if you were looking at one of the kinds of summary dismissal that are available in all of the superior courts in the country, mostly it fails if there is a genuine issue of witness reliability or credibility to be tried.  That is almost the paradigm of a case where there should not be summary dismissal of that kind.  I will come to that in terms of our proposition 5.

In relation to proposition 3, we say that, picking up on what Justice Gordon has put to me and which I have accepted, in particular, it is no part of the exercise to look at the material that has been made available to the application court, and see that, if accepted, the plaintiff’s evidence could produce a verdict in her favour, and use that as any part of the reasoning.

JAGOT J:   Could I just clarify, Mr Walker, the test is not possible or even likely unfairness, is it?  It is necessary and unavoidable.

MR WALKER:   Yes.  Of a kind which renders it an abuse of process, with the, if you like, rhetorical understanding of the quality of such a state of affairs such as to bring the administration of justice into disrepute.

JAGOT J:   Into disrepute.

MR WALKER:   Parliament has pretty plainly located an historical disrepute with respect to an entire societal response, including in the courts, for these cases.  Now, could I just draw to attention by way of an example of our proposition 3, if your Honours were to go to paragraphs 56 and 57 of the written submissions against us – I will not dwell on them in detail – they pick up some of the points we have made about common law processes, or common law techniques, and run through a catalogue to seek to persuade your Honours that they do nothing to the calculus of unfairness which is in contest in this Court.

It is very plain that this is informed by the notion that somehow a judge will go off the rails if there is a trial.  Thus, for example, if one looks at 56(d), this is this, in our submission, unacceptable notion that there are idiosyncrasies of judges who, even worse, do something in the nature of impressionism – see the opening words of 56 – that should inform your Honours’ understanding of the correctness of the Court of Appeal’s assessment that there would be an unfair trial.  That is, with respect, entirely disrespectful of the trial judiciary and, for that matter, the intermediate appellate judiciary.  If one looks at 56(c), there is complaint, so to speak, by way of a rebuttal of our argument about what might be called the Avalos idea.  That, in our submission, is entirely inappropriate.

If there has been, ex hypothesi, a finding of fact which is a result of the state of actual persuasion, taking earnestly into account Blatch v Archer, Watson v Foxman considerations and the like, there may well be matters of advantage for a trial judge appertaining to that finding which may well play an important part in any appellate attack on it.  That will all be the administration of justice fairly, according to principle, and not in a way that adds to, let alone creates, an unfairness in a prospective trial.  Paragraph 57, in particular, ends up with counsel of utter despair: 

no way of gauging how a trial judge might apply them in a future hearing.

This is an entirely misplaced plea, as it were, for some kind of mechanised, transparent application to the particular facts of particular cases of the general approaches adumbrated, say, in Blatch v Archer.  It is an entirely inappropriate way of pointing to unfairness generally or in this particular trial.

BEECH-JONES J:   So, the way Blatch v Archer might work out at this trial was, in effect, that it might otherwise be drawn against someone like the respondent, but the respondent can say, do not Blatch v Archer us, because the passage of time is such that you cannot expect us to produce such evidence now.

MR WALKER:   Exactly so.  And if we were to take, in particular, Jones v Dunkel, it would be one thing to have established that there is an archive that people have not bothered to look at, it would be another thing altogether to establish that there is not an archive and you cannot draw inferences the more confidently because of its absence, for example.

With respect to the particular aspect of this case, your Honours will have gathered that, albeit in an application for a permanent stay, there have been descriptions of our client’s case and her evidence in support of it by a number of epithets, all of them derogatory, such as “bare” or “unparticularised”, et cetera.  This case should not be approached wrongly as if it were some kind of very difficult summary dismissal by reason of what might be called unadorned narratives, but you have to consider all the evidence and, as you know, there is the evidence of RS.  I do not need to take you to it, but the reference is at 532 in volume 2 of our further materials and thereafter, continuing for detailed pages of narrative, some of which powerfully corroborates, were it to be accepted, the narrative – less detailed – of our client.

That is, in our submission, an archetypal situation calling for consideration at trial.  The idea that it cannot be tested because the respondent cannot confer with RS is, in our submission, bizarre.  No one has a right to confer – forget the fact as to whether or not RS was suing herself, that is not the point.  You cannot come to court for a permanent stay and say, none of the plaintiff’s witnesses will cooperate with me, they do not want to talk to me.  You cannot say, I have not got instructions to cross‑examine them because I cannot talk to the person I may cross‑examine.  And that is what the position advanced by the respondent with respect to RS against us boils down to.  It is, in our submission, an utterly inadmissible way of presenting a spectacle of a prospectively unfair trial. 

GORDON J:   Can I be a bit pedantic about it and ask that you, at some point, differentiate between the various claims?  Because I think the argument you just made about RS is relevant to some but not all of them.  I, at least, for my part, would be grateful if you could address the distinctions, if any, to be drawn between them.

MR WALKER:   Yes.  Could I take you, in our written submissions, to the way in which we have tried to set that out. 

GORDON J:   The reason why I raise it, Mr Walker, is that, as I understand it, there are four categories of claim.

MR WALKER:   Yes. 

GORDON J:   The way the pleading is pleaded, it seems to come down, I think, probably, to a complaint – or an allegation – against you of unfairness about, did the abuse occur?

MR WALKER:   Yes.

GORDON J:   Then, I think the second basis would seem to be an inability to address whether the State, I think – the way it is put – breached – the question of breach, is probably the better way to put it.  That analysis, consistent with the discussion you and I had before, seems to be different for the various heads.

MR WALKER:   It does.  I should add to what your Honour has put:  there is also, in the respondent’s position, considerable emphasis placed on matter of causation.

GORDON J:   Sorry, that is true.  But when I say the duty is admitted – the duty is – although the content of the duty seems to ‑ ‑ ‑

MR WALKER:   The scope of the duty is ‑ ‑ ‑

GORDON J:   Is this in issue?

MR WALKER:   I would expect ‑ ‑ ‑

GORDON J:   Causation in issue, but they are the two – anyway, at some point I would be grateful if you could, please.

MR WALKER:   A structure of it is that there were events – I will call them misconduct, they all appear to be criminal – that occurred.  That is front and centre in the complaint about unfair prospect of trial.  Then there is the question of what I will call the institutional response.  So, there are the wrongful events and there is – I should not say “response”; the institutional setting – either a lack of anterior care or a lack of posterior treatment. 

Then there is the important question of causation of the alleged injury, which is a disentangling point to which I will come in just a moment.  Justice Gordon is right, there are – as we have pointed out in paragraphs 7 through to 10 – a number of events alleged.  Using the titles we have given them without going in to detail that does not need to be talked about in open court, we have the Demlin assaults, we have the girls’ dormitory assaults and we have the NW assault, and those are contained in paragraph 7.  Your Honours will see there is an obvious relation between them, but I accept – and we plead – that they are discrete episodes.  It does not mean that they do not all inform the material contribution to injury for which damages are sought – that is, together or separately. 

BEECH-JONES J:   Just on that, your case is not a purely psychiatric harm case, is it?

MR WALKER:   No, no.

BEECH-JONES J:   Is there also a Pickering assault? 

MR WALKER:   Yes.  The Pickering assault is, again, discrete.  In our submission, in theory – though this was not done – one might differentiate between each of those discrete events with respect to a prospective fairness question.  That is, in principle, in theory, that is entirely appropriate, but it was not done in this case and there is no material which, in our submission, suggests it is necessary to do so because there is a narrative, sometimes corroborated sometimes not, but in each case you are left with the question whether or not in the assessment of prospective unfairness you approach the trial on the basis that for some reason the plaintiff should not be allowed to give her version because the defendant either does not have an eyewitness – I will come back to that – or has not been able to confer with an eyewitness – I have already dealt with that, RS – or it was a long time ago.

This notion, that you will see repeatedly advanced against us, of the need in order to be an appropriately active participant in adversarial proceedings for a defendant to have instructions needs to be examined.  It is not true that a defendant has some right to have the kind of knowledge about events alleged against him, her or it, which comes from being or having an eyewitness in your camp.  That is absurd, particularly absurd with what I will call covert atrocities, which are the social phenomena that was the concern of the Royal Commission and resulted in 11A.

So, the notion that offending cannot be the subject of much later civil proceedings because nobody but the offender is available other than the alleged victim is, in our submission, to state an impotence on the part of a common law court to entertain a claim and to adjudicate it using common law techniques which will naturally apply the appropriate demands on the party bearing the onus that, for example, Watson v Foxman classically describe.

What we submit is that because there is nothing in this case justifying any kind of differentiation or discrimination between the discrete episodes all pleaded as occasions where there were breaches of the duty of care and all pleaded as occasions which set in train processes which have produced the claim for personal injury by way of their either combined or several material contributions to that state of affairs, what one cannot say is the defendant is unable to participate, like many a defendant, even in a case brought well within an ordinary limitation period.

It has to deal with the cards it has and if it does not have any eyewitness itself it cannot complain that the eyewitness against it will not confer with them.  That is a completely ordinary forensic position.  You do not become a passive bystander because you do not have, so to speak, the advantage of being able to conduct a police interview of somebody compulsorily.

GAGELER CJ:   Mr Walker, can I just ask a specific question about the absence of documents that address the allegations.  To what extent is that said to be attributable to the passage of time?

MR WALKER:   There is no finding which enables us to say – either side to say – there once was but now is, simply by the passage of time – or by the exercise of what is ironically called a document retention policy – there is no evidence whatever that we fall on the wrong side of some policy that after thirty years everything is pulped, for example.

GAGELER CJ:   How does the absence of any documentary record then feed into any relevant analysis here?

MR WALKER:   We say it does not, but it is used against us on the basis that – and this is obviously, if I may say so, problematic, certainly as a generalisation – they do not have record by which they could, so to speak, check the veracity, and perhaps other aspects of our client’s claim.  We have referred to the fact that there is material concerning the so‑called superintendent – the one allegedly responsible for brutal floggings – but, in our submission, it is not identified in any of the judgments below that this is a case where the lapse of time has meant the occurrence of something to documents which, by inference, could have provided the defendant with something material beyond what they already have.  That is, what they can muster themselves.

It is for those reasons that it would be really inappropriate to visit to the detriment of our client that an absence of something which is really not identified and the absence of something which, in particular, cannot be characterised as being of critical or significant usefulness for the defendant in apprising itself of the position it should take by way of challenge.  That is, instructions to cross‑examine, to use the expression our friends use, or even material by which one would recognise there has been a State failure and that admission of the claim would be appropriate, to use ‑ ‑ ‑

STEWARD J:   Mr Walker, can I ask you one more question of principle before we have the break.  You will recall that, at paragraph 71 of Moubarak, Chief Justice Bell summarised a series of nine propositions.

MR WALKER:   Yes.

STEWARD J:   Under the new world, do any of them need to be amended or varied or added to?

MR WALKER:   There is one to be added.

STEWARD J:   Yes.

MR WALKER:   And these need to be understood and applied in cases to which 11A – or, in New South Wales, 6A – applies, by reference to the radical alteration of that which is extreme or exceptional, with respect to the evidentiary possibilities, in particular, for a defendant.  In the cases that the now Chief Justice was, with great respect, most usefully extracting and summarising, one had, in a very familiar common law way, epithets of extreme or exceptional applied to the mere passage of time.

I use the word “mere” because the authorities do.  I am not to be misunderstood as suggesting that you ever separate the passage of time, particularly decades, from its effect upon memory and therefore upon evidence by way of so‑called impoverishment.  That is what is involved in all of that.  What we are saying is that, if I can call it, the Moubarak summary of propositions will remain obviously useful so long as they are adjusted to recognise that, for example, somebody giving evidence 50 years after the event is not to be treated in and of itself as contributing to a claim that there cannot be a trial.  That is, the notion that there cannot be a fair trial because it is 50 years later is, in our submission, now greatly qualified by 11A.

Now, that does not mean that the trial judge, when it comes to an adjudication, will not nonetheless, under Watson v Foxman, have an attitude to actual persuasion concerning any particular evidence greatly informed by the effect of 50 years on the fading of memory.  That, in our case, is not about that.  But, to complete my answer to Justice Steward, no, what I might call redrafting of those propositions is not called for by GLJ.  It is a recalibration, so to speak, of the state of affairs sufficiently extreme or exceptional to justify a stay, which is the effect of GLJ. 

GAGELER CJ:   Mr Walker, is that a convenient time?

MR WALKER:   It is.

GAGELER CJ:   The Court will take the morning adjournment.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

MR WALKER:   Your Honours, I do not really want to add to what I have already said apropos proposition 5 of our outline.  Could I take you briefly, please, to two passages in the reasons of the Court of Appeal in the core appeal book, page 60, starting with paragraph [64].  The reasons turn to an argument about the alleged lack of opportunity for the State to confront alleged perpetrators, and our unsuccessful argument in the Court of Appeal was then noted.

That argument being dismissed on the basis that our argument invited “speculation”, in our submission, the better and more principled approach, particularly bearing in mind where the onus lies in an application for a stay, is to be wary of taking into account in favour of a stay what this Court in GLJ paragraph [76], as I earlier noted, identified as inappropriate speculation about a course of events that might follow if an alleged perpetrator – in that case, the dead priest – had been available at an earlier time for so‑called instructions.  Paragraph [64] in the Court of Appeal wrongly, in our submission, proceeds on the basis that there is some relevant onus on us, with respect to an application for a permanent stay.  Of course, the onus to show the unfairness is all the other way.

The argument in [65], which is summarised but dismissed by their Honours, is, as you can see from the beginning of [66], not dismissed on what might be called the ground of having no merit at all, but rather because, as the Court saw it, the passage of time might make all the difference between a case of a missing perpetrator killed in the act of negligence which, allegedly, caused loss to the plaintiff, and such an absence of a perpetrator 30 years after the event – and that is, of course, based upon the facts in Batistatos.  In our submission, that is a form of reasoning which wrongly gives no weight whatever to the new normative context with which I commenced my address.

Could I, finally, refer to paragraphs [74] and following in the Court of Appeal, at core appeal book 62 and 63, where the first instance decision of the Chief Justice to the effect that the disentangling of what I will call causal influence of the sued‑upon events from the influence of other mishaps and tragedies in our client’s life in producing the present state of injury was described at first instance as being an “insurmountably difficult” task.

Now, of course, it is going to depend not only on inferences by a lay judge in light of findings as to facts – that is, the events in question – but also upon at least some role for expert evidence there is reference to it – of course, not tested, naturally enough, on an application for a permanent stay.  In paragraph [76] of the reasons, Dr Pant’s position, your Honours will note how the quotation starts:

it is difficult to disentangle the events with absolute precision.

That is, no doubt, correct.  In our submission, the common law has never sought anything like absolute precision in relation to the retrospective ascertainment of whether a plaintiff has shown that a defendant’s wrong has materially contributed to the plaintiff’s state of being which is said to constitute the compensable loss.

GORDON J:   Is your submission to suggest that the finding that was made that there is an insurmountable difficulty is wrong?

MR WALKER:   Yes.  If it means anything, it means the plaintiff is going to lose because they will not be able to show any material contribution, but that is really beside the point in a case for a permanent stay.

BEECH‑JONES J:   Mr Walker, can I just ask – this is where I get a bit confused – is this talking about her psychiatric condition?

MR WALKER:   I think so, your Honour.  I think that must be what the psychiatrist is focusing on, yes.

BEECH‑JONES J:   Now, as I read your client’s statement of claim, it seeks what I will call the general common law damages that might follow from an assault.

MR WALKER:   Yes.

BEECH‑JONES J:   It does not require proof of a psychiatric condition.

MR WALKER:   No, not at all.

BEECH‑JONES J:   If you did not have that, you infer a degree of general damages from what you know about the circumstances of the plaintiff and the assault that occurred.

MR WALKER:   And knowledge of the world concerning assaults, yes.

BEECH‑JONES J:   But is this ‑ ‑ ‑ 

MR WALKER:   But this is about psychiatric injury.

BEECH‑JONES J:   Right.  So, this is – a component of her damages claim is said to be untangleable, for want of a – undisentangleable, not capable of ‑ ‑ ‑ 

MR WALKER:   Yes, I have your Honour’s warrant for using that word now, yes.

BEECH‑JONES J:   Yes.

MR WALKER:   Yes, undisentangleable – I do not use it well, though.

BEECH‑JONES J:   No, and I will never use it again, actually.

MR WALKER:   No.  Unable to be disentangled.

BEECH‑JONES J:   That is better.

GORDON J:   So, you have three propositions.  One is it is directed at one aspect of the damages claim; second, to the extent that it goes to the psychiatric evidence, the finding does not reflect the evidence.

MR WALKER:   That is right.  In our submission, as we have pointed out in writing, and as the Court of Appeal recognised in paragraph [78], the common law has been dealing with this problem of retrospective disentangling of the mysteries of the mind with psychiatric injury, not just the mysteries of the body with bodily injury, for a very long time.  Watts v Rake and Purkess v Crittenden, if I may say so, are nowhere to be seen as requirements for “absolute precision”.

GLEESON J:   But, again, this is in a context ‑ it is a question of degree – where, presumably, we are talking about trying to evaluate someone’s – effectively, the lifetime of their psychiatric experience.

MR WALKER:   It will always be retrospective from the trial when one is saying these things have individually acted and cumulatively acted so as to be material contribution to my present state of affairs.  It will always be

retrospective, and so there will always be – this is stock standard in such cases ‑ ‑ ‑

GLEESON J:   But not just stock standard, is it, Mr Walker, because we are contemplating looking at the psychiatric history of someone who is 70 over a lifetime starting from the age of five.  That is a fairly rare situation.

MR WALKER:   Well, whether fortunately or not, the whole class of this kind of case is fairly rare, but if you are talking about the lifetime cumulation of what some experts call stressors – a rather mild expression – then, with respect, a defendant is not, in any way, compromised in their capacity to contest the claim by the fact that they have greater richness of subsequent events as rival explanations for the current state of affairs for which damages are sought, and it is simply not the case that these are cases, this kind of injury, are best tried shortly after the stressor.

EDELMAN J:   Well, the rival event may be non‑tortious.

MR WALKER:   I am so sorry, your Honour?

EDELMAN J:   The rival event may be non‑tortious as well.

MR WALKER:   Exactly so.  It could be non‑tortious or it could be – I think of asbestos cases – someone who is not before the court.  So, in our submission, the model of a case best being heard shortly after the events in question is severely to be doubted in the case of injuries of the kind for which we sue.

May it please the Court.

GAGELER CJ:   Thank you, Mr Walker.  Ms Heyworth‑Smith.

MS HEYWORTH-SMITH:   May it please the Court.  The court’s power to stay a proceeding exists to ensure a fair trial and to prevent a proceeding that would be an abuse of process.  It is not enough, with respect, that the trial might be conducted fairly depending on rulings that might be made with respect to evidence that might be available.  The respondent has, with respect, discharged what has been described as the heavy onus of demonstrating that the trial would be fundamentally unfair, and the learned primary judge was correct in finding that there would be nothing a trial judge could do to overcome that unfairness. 

Now, despite submitting that something could be done by the trial judge in order to alleviate any potential unfairness, the appellant’s submissions do not land on particular techniques in this case, save for potential applications of the rule in Blatch v Archer or potential applications of the rule in Jones v Dunkel or their non‑application, as the case may be.  A trial, we submit, that would have been unfair before this Court’s decision in GLJ will still be an unfair trial after this Court’s decision in GLJ. 

The appellant’s submissions are predicated on the acceptance of the proposition that there might be gradations of fairness applying to a trial, that there might be some trials that are more or less fair than other trials.  In GLJ, this Court accepted, with respect, that if it is found that a trial will be unfair on an evaluation of the circumstances of that case, then it should be stayed.  If the court were to find the trial to be fair on an evaluation of the circumstances of the case, then the stay should be refused, admitting of no residual discretion with respect to those matters.  So, it is a binary condition to have either a fair trial or an unfair trial.

The proposition that is urged upon this Court by our learned friends is that the nature of the case in terms of the type of defendant, as well as the type of plaintiff, will actually bear on the question of what is fair and what is unfair.  Each case must turn on its own facts.  That is without contest.  In this case, even though there are circumstances that our friends point to that suggest that a trial might be conducted fairly because some techniques might be applied, it is not the case that anything that has fallen from the appellant’s submissions leads to the proposition that the fundamental unfairness that presents now can be overcome by those mechanisms, or that this is not a case where there is a confluence of circumstances which makes it the exceptional case.

Our learned friends took your Honours to paragraph [50] of GLJ, and in particular the discussion of the unexceptional sequelae to harm of the nature of childhood abuse.  To answer your Honour the Chief Justice’s question squarely, we do not seek to contend that GLJ was incorrectly decided.  Our submission is that it has not changed how this case should be decided.

EDELMAN J:   Has it changed how other cases should be decided?

MS HEYWORTH‑SMITH:   Given that each must be determined on a case-by-case basis, your Honour, our submission is that there will be cases that come before you where evidence that might have been sufficient to discharge the onus is not considered by a court to be sufficient to discharge the onus.  It is that question of what evidence can be placed before the Court on an application for the stay that is determinative.

Our submission, though – again to answer your Honour quite directly – is that, if it was amenable to a stay before GLJ, because it is determined on an evaluation of the evidence that the trial would be unfair, then it is still amenable to a stay after.

STEWARD J:   Does that proposition accept Mr Walker’s contention that there is now to be greater tolerance of impoverishment of evidence, accepting that the phrase “greater tolerance” may not be entirely apt?

MS HEYWORTH‑SMITH:   Your Honour, the issue of greater tolerance of the impoverishment of evidence is one which is derived from a conflation of expressions in cases.  Lord Sumption’s reference to the impoverishment of evidence together with this notion that, in fact, there is allowed to be a tolerance of an otherwise‑unfair case subsequent to GLJ, the issue with respect to paragraph [50] is that those unexceptional sequelae of the harm that is alleged – death, illness, infirmity, the loss or destruction of documents – they may be routine and unexceptional because of the passage of years.  That does not mean that when there are numerous circumstances that all arise in the same case, that those otherwise‑unexceptional sequelae will not operate to produce the circumstances that create the exceptional case where a stay ought be granted.  This is one of those cases.

STEWARD J:   So, does that mean you disagree with Justice Leeming’s reasoning in CM?

MS HEYWORTH‑SMITH:   Insofar as Justice Leeming has, in his reasons, departed or questioned the correctness of GLJ, it is not the respondent’s case to challenge that correctness.

EDELMAN J: Do you say that the meaning of what is “fair” changed after section 11A was enacted?

MS HEYWORTH‑SMITH:   No, we do not say that.

EDELMAN J:   If you do not say that, and you also say that a trial that was unfair before GLJ will still be unfair after GLJ, if those two propositions are inconsistent in their application with parts of the reasoning in GLJ, what do you then propose?

MS HEYWORTH‑SMITH:   Your Honour, the issue of whether or not a trial would be found to be unfair after GLJ is one which would be guided by what was said by the majority in GLJ, in particular in relation to those issues as to how the Court would view the application of the various common law or statutory techniques for rendering a trial “fair”.  So, on an application prior to GLJ, there may not have been the recognition that there are those half‑dozen different mechanisms that would cause a trial judge to conduct the matter fairly, or would be available to them.  And we must accept that GLJ actually does point to those and say weight must be attributed to what might be capable of being done by a trial judge in a future trial.

It is that distinction, your Honour, and we do not say that it is more than that, because GLJ does not define, within its terms – within the terms of the majority – a different description of what is “fair”.  In fact, when one looks at paragraph [20], the Court refers to the adversarial system in a civil trial, starting with the words:

Accordingly, the adversarial system generally requires that a plaintiff be able to identify the claim made and the material facts on which the claim is based, and that a defendant be able to consider and respond to the claim in some meaningful way.

In GLJ, the majority did not, in fact, redefine what is a fair trial, but your Honours would realise that there is precious little authority that actually defines what a fair trial looks like, as opposed to instances where the court determines what it is not.  But absent in the majority, a redefining of what constitutes a fair trial.  We do not say that the bar has been moved by GLJ but, simply, that on an application for a stay in a future case, there may be more emphasis placed on, and scrutiny given, to what is said with respect to what a trial judge might do with the evidence in the future – but it is limited to that.

The first two grounds of appeal that have been made to this Court are what we have described as the material difference grounds.  They engage with the proposition that the respondent held an onus to satisfy the Court that even though may be an impoverishment of evidence now, such impoverishment would always exist at any reasonable time.  In essence, what is said is that it required the respondent prove on the application for a stay that there would have been a material difference to the conduct of the defence if the perpetrators, or the persons they would obtain information from, were alive. 

In our written outline, you would have seen the arguments we raised with respect to that proposition.  One is, take the instance of assault – in this case by Pickering.  Pickering has not been identified. He would certainly be deceased now as he was sixty to seventy years of age at the time.  There were no witnesses to the assault and there is no way for the respondent to investigate now whether or not it or the surrounding events occurred.  The grandmother, in whose house the assault is alleged to have occurred, has died; the mother, who was said to have taken her to the grandmother’s house, has died.  There was nobody else noted to have been there at that time. 

So, to then say if that one particular case was being run against us, and there was a stay application being made for that one particular part of this case, you would have to prove that Pickering would have assisted you in investigating this case, which has a degree of circularity to it.  The reason for the stay is that Pickering is unidentified and cannot be spoken to, so how could the respondent ever satisfy a court in the sense of discharging a burden of proof that Pickering would have reacted in one way or another to being questioned.

Justice Gotterson, giving the judgment in the Court of Appeal, picked up this point and described it as inviting the court to speculate how those witnesses would have responded if they were available and able to be contacted.  It is that point where his Honour, with respect, correctly identifies that there is no authority that requires that to be discharged as part of the onus.

Even if you take that point a step further and say, if you are doing the exercise of comparative fairness, would it have been comparatively fair if the trial had been run while Pickering was still alive compared to how it is to be run now Pickering is truly deceased.  You must then look at, if Pickering was still alive, it would not just be that you could potentially find and speak with Pickering.  He may or may not elect to talk with you, and that illustrates the level of speculation involved, because if Pickering, say, were a younger man, he might want to wholeheartedly contest an allegation of sexual assault, because it will otherwise hang over him for the balance of his life.

GAGELER CJ:   Ms Heyworth‑Smith, I am sorry, would you speak slightly more directly into the microphone?  Thank you.

MS HEYWORTH-SMITH:   I apologise, your Honour.

GORDON J:   Your prejudice on this point is, I think, at its highest, the possibility of a bare denial, is it not, by Pickering?

MS HEYWORTH-SMITH:   The possibility that Pickering may be able to give instructions.  Not just that it is a bare denial, but he might well say, I was not even in Queensland when that is said to have occurred, that year I was in New South Wales; I did not go to that lady’s house that year.  It is not merely the bare denial to say, yes, I was there and, yes, I know who you are talking about, but I never touched her.  There is more to it.  There are the circumstances around it as well that may have been available at an earlier time but are lost now.  Our friends say that the differentiation is because it is not a loss of evidence, it is a loss of the opportunity to obtain evidence.  If that is so, it remains a valuable opportunity that has been lost.

BEECH-JONES J:   What about NW?  NW is still alive, as I understand it.

MS HEYWORTH-SMITH:   NW is still alive.  Now, the ground of appeal with respect to NW being alive, is the last of them.  And it only actually comes to relevance if the Court finds against us in relation to the causation ground of appeal.  So, in context, I would start with that point. 

We do not suggest that NW is someone who could not be spoken to and, indeed, before the Chief Justice below, there is a file note of a conversation with NW.  But what can be seen from that file note is that NW was then a 98‑year‑old man and he is being asked to recall things that happened when he was 15, possibly 16, and himself a child.  So, we are looking at a period of 55 years.  And you can see from that file note that his own recollection of what he was asked about is flawed.  His wife was there, and she was prompting him with respect to how long he spent at the dormitory, when he stayed there.  The issue with respect to NW is that he might be alive, but he is being asked to recall things that were so long ago, when he was just a child, and his memory on the evidence is not sufficient for that to be a meaningful inquiry.

The instances where the gradation of impoverishment of evidence are many in this case, and in order to illustrate the fact that this does fall within the exceptional category, your Honours might consider a further particular illustration of that not involving one of the sexual abuse assailants, but Maude Phillips.  Now, Maude Phillips was the manageress of the girls’ dormitory, and she was said to be the assailant with respect to physical assaults that occurred after the appellant was returned to the dormitory when she was five or six years of age.

In the preparation of this matter for the hearing of the stay application, there were psychiatric reports sought.  The parties agreed jointly to engage Dr Mee Ling Khoo, who is a psychiatrist, and the appellant attended on her.  She records a two‑and‑three‑quarter‑hour assessment, and she produced a report which is before the court.  She was then asked by the plaintiff’s solicitors to view some statements and to produce a further report, so her supplementary report is before the court.

The appellant then obtained a report from a different psychiatrist unilaterally, not jointly, and that is the report of Dr Pant, to which our learned friends referred, and it is Dr Pant’s report on the related point with respect to causation where he says that it is difficult to unravel causation, disentangle causation, with absolute precision, but I will return to that in a moment.

In Dr Pant’s report, the appellant is noted to have told him that when she returned as a young child from the Demlins’ care to the dormitory, she was caught by Maude Phillips doing something that she now understands to have been looking like masturbating.  Maude Phillips became very cross at her and called her a dirty girl for doing that, but then Dr Pant uses that event to justify his diagnosis of post‑traumatic stress disorder.  He says in his report that simulating masturbation in a child that young is what is known as play re‑enactment, and it is play re‑enactment of a trauma that has gone before.

So, Dr Pant not only records the appellant saying, Maude Phillips saw me do this thing, and she was in trouble for it, Dr Pant then says, this is evidence that the trauma that gave rise to the post‑traumatic stress disorder in fact took place, because it is in the nature of play re‑enactment, and that is a known feature.  So, one takes that back to say, well, we cannot now talk to Maude Phillips about whether or not she did in fact observe this, whether or not she did call her a dirty little girl.  That whole event is lost to us as one of the circumstantial planks for the appellant’s case with respect to the Demlins.  So, it is not just that we cannot talk to the Demlins, who did indeed die a very long time ago; we cannot talk to Maude Phillips about something that is central to the diagnosis.

Your Honour Justice Beech‑Jones mentioned with respect to the nature of this case in Tame v New South Wales (2002) 211 CLR 317 the Court said at paragraph 296, psychiatric symptomatology is not sufficient. There must be an actual injury that arises by virtue of a diagnosis of a psychiatric illness.

BEECH-JONES J:   But that was a pure psychiatric harm case.  That is not this case.

MS HEYWORTH-SMITH:   That is a pure psychiatric harm case.  However, your Honour, with respect, there is no physical injury that is said to be compensable now.  The compensability is solely the psychiatric injury.

EDELMAN J:   No, Tame is talking about psychiatric harm for the purpose of establishing a duty.  It is not psychiatric harm that is consequent upon has been said to have been physical injury, or emotional harm consequent upon what is said to have been physical injury.

MS HEYWORTH-SMITH:   Your Honour, I take that point.

BEECH-JONES J:   Even absent proof of a psychiatric injury now, a judge hearing a past case of assault could make conclusions about general damages and affectation in the immediate period after it, or they might not, depending the evidence.  None of those are insurmountable problems, are they?

GORDON J:   That is what is pleaded at paragraph 19 of the statement of claim.

MS HEYWORTH-SMITH:   Indeed it is, thank you, yes, your Honour.  The injury that is said to – what is pleaded against us is in fact that there is an injury.  It is pleaded that there were symptoms arising and then that there was an injury suffered by reason of the events.  So, the appellant does not shy away from the fact that she must demonstrate that she has a psychiatric injury.  That is in fact her case, your Honour.

BEECH-JONES J:   But it is not essential to her case, as I have read it.

MS HEYWORTH-SMITH:   She would not be compensated, with respect, merely for suffering some symptoms that do not amount to a psychiatric injury, your Honour.

EDELMAN J:   Really?

MS HEYWORTH-SMITH:   Yes, your Honour.

EDELMAN J:   But you do not get compensation for suffering symptoms that do not amount to psychiatric injury if they are consequent upon a physical injury.

MS HEYWORTH-SMITH:   Your Honour, my submission is it is similar to those cases where there is a grief reaction to a death of a loved one.  A grief reaction is not a psychiatric injury.

EDELMAN J:   They are duty cases though.

MS HEYWORTH-SMITH:   But, with respect, my submission is that ‑ ‑ ‑

EDELMAN J:   There is a duty not to cause physical harm.

MS HEYWORTH‑SMITH:   The difficulty in relation to those duty cases is that if there is a duty not to cause physical harm – or psychiatric harm, with respect – but what is claimed is in fact a form of psychiatric symptomatology that is not recognised as something that is a diagnosable injury, aside from the fact that it very much goes to the difficulty with respect to causation here – the idea that there can be some overarching degree of symptoms of discomfort, psychiatric discomfort or anxiety that is never diagnosed as anything, would be an anathema to this Court.  One would be speculating as to ‑ ‑ ‑

BEECH‑JONES J:   She claims damages for pain, suffering, mental anguish, loss of amenities.  If her claim had completely resolved by the time of the trial, the trial judge could nevertheless award general damages for past pain and suffering consequent on physical injury, could they not?

MS HEYWORTH‑SMITH:   Yes, the physical injury, yes, your Honour.

BEECH‑JONES J:   Yes.  The physical injury involved in assaults and sexual assault.

MS HEYWORTH‑SMITH:   Yes.

BEECH‑JONES J:   And that does not depend upon having to unravel causation about psychiatric injury, does it?

MS HEYWORTH‑SMITH:   With respect, what is claimed here is not damages that are immediate and consequent upon a physical or a sexual injury.  It is a lifetime’s worth of economic loss based on the consequences of a diagnosed psychiatric injury.  That is the case put against us – not merely that she suffered some psychiatric discomfort.

BEECH‑JONES J:   Not merely, but includes that.

MS HEYWORTH‑SMITH:   It includes that, and one would expect, with respect, it to include that.  It would include anxiety, because that is a feature of a disorder.  It would include panic attacks, because that is a feature of a disorder.  It may include fear.  It may include flashbacks.  It may include nightmares – but nightmares are not a compensable injury, they are feature ‑ ‑ ‑

BEECH‑JONES J:   I am sorry, but is not the case that I have outlined one that is within the terms of the pleading?  Specifically, the plaintiff has endured, in the past, pain and suffering, and claims general damages for pain and suffering.  That aspect – it would be a narrower, smaller part of the case – does not depend upon present proof of a psychiatric injury, would it not?

MS HEYWORTH‑SMITH:   With respect, if the pain and suffering were physical – take the beatings by Maude Phillips, and she was hit with a switch and she says she suffered welts as a result of that – that would be an injury that, in normal circumstances, would be compensable and it would cause pain and suffering.  It might be of limited duration, and it may, in fact, be a very small part of a claim, but it would include that part of – that would be included in the pain and suffering.

EDELMAN J:   And it would include any depression, humiliation, and so on, that did not amount to a psychiatric illness.  It would include all of that.  But, as I understand your submission, you say that as soon as one goes beyond that to claim for psychiatric illness, you lose everything.

MS HEYWORTH‑SMITH:   With respect, your Honour, that is not our submission.  The point of it is, when you look at paragraph 16, on page 12 of the appellant’s book of further material – this is from the amended statement of claim.  At paragraph 16, she says:

As a result of the sexual assaults the Plaintiff experienced –

she experiences each of those symptoms.  She experiences “trauma”, what that may mean; she experiences “fear”.  Towards the end, she says she experiences “emotional and mental exhaustion”.  In paragraph 17, she pleads:

As a result of the sexual assaults –

and those are the symptoms in 16, of the sexual assaults:

and serious physical abuse –

and there two instances of that – I will come back to why I say there are two:

the Plaintiff has been diagnosed with suffering a psychiatric injury, namely Post Traumatic Stress disorder and psychiatric symptoms as pleaded in paragraph 16 above.

So, the psychiatric injury that is claimed is the PTSD.  The symptomatology certainly – and we do not resile from this – would go to the extent of the general damages that she is awarded.  If she was diagnosed with PTSD, but it did not bother her very much, then the general damages might be less.  If she is diagnosed with PTSD and she has rampant and serious symptomatology, the general damages will be more.

GAGELER CJ:   Ms Heyworth‑Smith, both sides seem to have approached this case at all stages as an all or nothing application for a stay.  If we were to find unfairness in one aspect of the claim but not another, how should that be addressed?

MS HEYWORTH‑SMITH:   Yes.  With respect, your Honours can apply a siloing, as it were, of the claims.  For instance, your Honours might find the most obvious case of unfairness that is placed before the Court is with respect to Pickering, where we are truly in the dark, we know nothing about that claim.  That is a very clear case of it, in our submission.  With respect to others – though we do not resile from the notion that they, too, are very clear – it is within this Court’s power to say the Court of Appeal was correct and the primary judge was correct to stay this case, and this case, and this one, but we will let this other one go through to the keeper.

GORDON J:   Do you accept that, when one looks at the facts and matters to be taken into account on the application for the stay, they vary between each of the claims.  By that I mean, for example, in relation to the Demlin claims, we have RS’s evidence, that does not weigh in relation to the Maude Phillips’ claims; in Maude Phillips’ claims, we have at least a report of a prior earlier complaint having been made, we do not have that in relation to Demlin claims.  Do you accept that one has to undertake that separately in order to determine whether or not one is looking at a stay for each of them?

MS HEYWORTH‑SMITH:   Yes, your Honour.  Yes, and that is one of the factors that actually is one of the circumstances that creates the confluence of circumstances for this to be an exceptional case, and that is ‑ ‑ ‑ 

GORDON J:   I do not understand that submission.  Could you just put that again.  You mean confluence for each of the separate heads of claim, or do you mean globally?

MS HEYWORTH‑SMITH:   Yes, each and together, and if I may expand upon that.  There are, in fact, five separate cases, not just four, that are brought against us because there is the Demlin abuse.  There is then a claim of severe physical abuse while in the Demlin household.  So, with respect to the Demlins, there are actually two:  there is Demlin sexual abuse and there is Demlin physical abuse.

GORDON J:   Do you mean the malnourishment claims?

MS HEYWORTH‑SMITH:   No, with respect, the pleading actually elevates it to physical abuse, beatings for minor infractions of rules, I think, is the expression that is used.

GORDON J:   I see.  Thank you.

MS HEYWORTH‑SMITH:   There are those two aspects with respect to the Demlins and they are pleaded separately.  There are then the Maude Phillips assaults that took place in the girls’ dormitory, and there is then the NW assault, and then the Pickering assault.  So, there are three instances of sexual assaults and two instances of physical abuse.  In relation to the case that is put against us, even though there are these separate tortious events, or categories of events, it is all said to cause the one harm, which is the post‑traumatic stress disorder, and that one harm is the thing that is said to have caused the economic loss and the ongoing pain and suffering that is the subject of the claim.

When one looks at how this case is approached, there is no attempt on the appellant’s side of the record to create any demarcation or raise any evidence to suggest that any one or other of the five instances of abuse was more serious or less serious, or had more effect or lesser effect upon her, and this is in a case where the respondent is not simply looking at that issue of causation from the perspective of the five pleaded events but also from the perspective of the life stressors that followed that had an effect on her mental state.

Dr Khoo, for instance, says that at the time she saw her in 2020 she was not suffering from a diagnosable psychiatric illness, but she did accept that it sounded like she might have been suffering from an adjustment disorder back in the 1980s when her husband of 10 years left her with two children under the age then of five, as well as the child who was born when she was 16, having come out that he was gay.  Now, in 1980 she says she was very concerned that she might have AIDS and she subsequently was tested for that.

Dr Khoo notes that at about that time she was also prescribed some antidepressants for a short period of time, which she took but then stopped taking them.  Dr Khoo accepts that she may well have suffered a diagnosable psychiatric injury in the 1980s but attributes it to a life stressor that was occurring then.  Dr Pant was asked to consider many instances of stressful events that had befallen her.  It is not the case that the respondent cherry‑picks those events; they are the ones that were placed before Dr Pant, and it is in the context of those events that Dr Pant indicated how difficult it was to separate the medical causation.

The submissions that are put against us with respect to causation, I might just expand on for a moment.  There is a significant difference between the onus that a plaintiff carries to show that the index events caused or contributed to the harm that she has suffered.  That is an onus that the plaintiff bears.  However, Purkess v Crittenden and Watts v Rake set out that the onus shifts to the defendant to disentangle other causes and contributors to that psychiatric harm; to that illness.  In those cases, they involve demonstrated arthritis capable of being viewed on an X-ray, and even in those cases involving such physical signs capable of being seen, it is discussed as being a difficult exercise of disentanglement, and it must be done with some precision by the defendant.

So, here we have a circumstance where the economic loss is not confined to a short period before now.  It is not said that when she became aware of the Demlin abuse, for instance, she started to suffer loss, but the loss that is claimed is said to have been caused by the effect of her injury on her ability to negotiate the workforce for many years, such that in 2006 she would have had a higher level administrative pay point role than she did have when she started work at a particular employer, and then, shortly after starting that work, her pay points would have increased such that she moved into an executive service position, so that it is, in fact, in the last 18 years that the appellant says the effects of this injury have caused her to suffer economic loss and those effects stemmed from when she was a child.  They did not just start in 2006 when she started to suffer this loss.

What the respondent is faced with is the task of looking back in time to see, well, what effect did the injuries have at each, say, waypoint in time when she might have earnt more but did not, or in 2006 when she might have started at a higher level at a new employer but did not, and subsequent to then when she might have reached the position of an executive service level pay point but did not.  It is that disentangling in the circumstances that were put before Dr Pant that makes this exceptional.

EDELMAN J:   Do you say that the disentangling of the Purkess v Crittenden‑type approach applies to both non tortious events and tortious events?

MS HEYWORTH‑SMITH:   Yes.  For instance, if there is a – using the example I have already mentioned, of the event where a husband left her and she suffered symptoms sufficient to be diagnosed to have an adjustment disorder and take medications, that is a non‑compensable event, a non‑tortious event, certainly as far the respondent is concerned, and yet that is a factor that may bear on her ability to earn an income.

EDELMAN J:   That is closer to the Purkess‑type scenario, but what about multiple tortious events?

MS HEYWORTH‑SMITH:   If the Court in this case were to find that, say, all five of the tortious events were proved and the appellant won her case at trial then there would not be a necessity to divide up causation between those, but there would still be the necessity to divide up causation between those and the other life events.

EDELMAN J:   I understood your submission to be that, for example, the Pickering assault, that infects – if there was to be an unfair trial in relation to the Pickering assault for the reasons of causation, that would infect the other four categories.

MS HEYWORTH‑SMITH:   Yes.

EDELMAN J:   That’s not Purkess.  I do not know of any authority that says that.  And on a “but for” basis, that collapses into a submission that if five people push a car off a cliff none of them is liable.

MS HEYWORTH-SMITH:   The logic of the five people pushing the car off the cliff is obviously unacceptable and, indeed, March v Stramare points to it as being such.  The issue with respect to Pickering is that if it is found, for instance, that the Pickering assault occurred but it is non‑compensable as far as the respondent is concerned, then it just falls within the category of other life stressors, like the husband leaving in the 1980s.

BEECH-JONES J:   All those events, though, they are quite typical in these cases.  There are a number of cases that have run through State courts involving historical sexual abuse where there have been all sorts of events in a person’s – because it happened when they were a child and the courts just do their best to, as it were, disentangle.  Why is that exceptional?

MS HEYWORTH-SMITH:   It is exceptional because, in this instance, there was no report of this to anybody until 2016, so we have a lifetime of disentangling events over many decades.

EDELMAN J:   That is almost every mesothelioma‑type case or every dust diseases‑type case, every case where people have a degenerative disease that is partly contributed to by life stresses and partly contributed to by negligence.  Courts look back to a lifetime in many, many occasions in civil liability claims.

MS HEYWORTH-SMITH:   With respect to your Honour, there are distinguishing factors in each one of the instances.  So, for instance, the mesothelioma or silicosis cases, there is the ability to look back to see who was employing the worker at that time, what were the levels of product that were being dealt with at those periods of time.  There are mechanisms.  The court does not adopt an unprincipled approach to the disentangling exercise. 

The difference here is that we do not have the material available to us to say that, for instance, as at age 20 when these assaults were very near in time, the appellant was affected in a particular way by them, and how her life progressed from there, as opposed to when she was 40 and she has had other life stressors, or as opposed to when she is 60 and she was then starting to suffer from some health issues, as well, which were a concern, the death of her son, all of these aspects of her life which she did report to people as being causative of grief and anxiety and depression.  But the index events were never one of them.  There is simply no evidence, and it is in that context that the defendant is required to disentangle this.

Now, your Honours, I mentioned Dr Pant’s report.  In relation to the criticism that is put before your Honours as to the learned primary judge’s discussion of that, the ground of appeal is that the evidence of one psychiatrist who says that disentangling is near impossible is not enough to grant a stay.  If I might take you to his report, please.  It commences at volume 1 of the appellant’s book of further materials at page 357, but the issue as to the causation is first to be found on page 384.  Halfway down the page in what was asked of Dr Pant in relation to the index abuse, the Demlin abuse, the dormitory physical abuse, and the cousin and the great‑uncle, Dr Pant answers: 

Ms Willmot provides a complex history and it is difficult to disentangle the events with absolute precision.

The criticism put against us is that the standard is whether the disentangling has to be done with something along the lines of absolute precision.  But that is not the end of that evidence.  Dr Pant notes that: 

Prior to the alleged abuse, she was living at the Cherbourg Dormitory and was already separated from her family.

So, he comments on her vulnerability from even before the Demlin abuse.  And then at the top of page 385, he says: 

The other life stressors that have happened in her life were after the periods of childhood abuse and would have contributed to her ongoing psychological symptoms but I am unable to estimate the extent that each individual life stressor would have had on her conditions.

So, he is not then saying that he is trying to apply a principle of absolute precision; he is saying, I cannot even estimate it, I am unable to estimate what effect those will have.  And that was the evidence before the trial judge on that point.

GORDON J:   So, we know that they have all contributed, because that is the summary of the position at the end of the first paragraph you took us to on 384, but there is some difficulty in disentangling it.

MS HEYWORTH-SMITH:   Because from a psychiatric, medical perspective, he is unable to disentangle them.  However, that is not what the Chief Justice below has done.  Her Honour has not simply parroted what Dr Pant has said, because this is that distinguishing between medical or psychiatric causation and legal causation.  She is looking at this from the judge hearing an application for a stay and necessarily looking prospectively to a trial of the matter to say, can this be done fairly.  And she has found that it would be insurmountably difficult for the defendant to discharge the onus with respect to the disentangling on the question of causation. 

There then comes this question.  The only point that is put against the respondent in relation to that is that there was only evidence of one psychiatrist, and he was pitching it too high to absolute precision.  Well, that does cherry pick part of it because he did not make it so absolute; he simply said he is unable to determine it.  And the Chief Justice has read that and formed her view, and her view is that the causation as a legal concept would be “insurmountably difficult” for the defendant at trial. 

We do not see anything in the submissions that we have received below, or in this Court, to actually say why it is that, as an experienced trial judge, the learned primary judge was wrong with respect to that.  With the greatest respect, it is not enough to simply say that trial judges do that all the time.  They may, with the greatest respect, do that, but they do not do it in a case like this where there is no evidence from which the defendant can point to the other life stressors – the pre‑index event life stressors – or the determination of the causation of the actual index events themselves.  That is what makes that point ‑ ‑ ‑

GORDON J:   It is narrower, really, is it not?  Your point here – we can point to all the life stressors or the other life stressors because they are referred to by the psychiatrist.  You say we cannot, with precision, or with any specificity, disentangle them.

MS HEYWORTH‑SMITH:   Yes.

GORDON J:   You know what the facts are – or, at least, the facts that are alleged against you – and you have them set out in the report.

MS HEYWORTH‑SMITH:   We do know what they are.  It is not that their other life stressors have never been recorded – they have been recorded in the medical and other records – it is the fact that what we do not have is any record of the index events from which we can actually disentangle whether or not it is the life stressors that are causing her psychiatric harm or whether or not the life stressors – sorry, your Honour.

GORDON J:   That is not quite right.  I mean, to the extent that you are approaching it as a question of the stay, you will have the complainant’s evidence and, in some respects, you have evidence from eye witnesses – that is why each of the cases has to be looked at differently, I think – and one then has a chronology other life events that have to be taken into account.  So, the fact that they are not reported – you mean historically reported?  Is that what you mean?

MS HEYWORTH-SMITH:   Yes, so that one can look back and, with the 30 years’ worth of general practitioner records for instance, can see, for instance, in 2002 there was a complaint made that she suffered a panic attack when she remembered abuse as a child.  There is nothing of that nature in all of this.  There is no reference to having been abused.  There is no reference to a complaint.  We are left now, much as is the case in relation to the actual reports of abuse themselves – of her statement incapable of being meaningfully the subject of cross‑examination to say that she is suffering these symptoms as she is expressing them, and not just that she is suffering them now or has suffered them since she made the claim or first recalled the Demlin abuse, but that they have impacted on her loss to the tune of hundreds of thousands of dollars of past economic loss.

It is at that point where we say well, we know that there are these other life stressors, but even her own psychiatrist says that is a difficult exercise to disentangle.  It places the defendant at jeopardy of being unable to contest the extent to which the index events, as opposed to other events, have affected her economic loss, for instance.

BEECH-JONES J:   So, I am still struggling with this.  All you are saying is, is it not, that the passage of time has been so large that there are more things that have happened in her life that contribute to the complex situation now?  Is that what we get to on this limb of your argument?

MS HEYWORTH-SMITH:   Your Honour, I think one aspect of how your Honour has expressed that is to the effect of, because it has been so long, there has been more opportunity for more things to have happened.  Less things would have happened in the first 20 years than in the last 60 years.  And if it is just that, then as a matter of logic, that follows.  But here, the passage of time does mean that more things have happened, but it also means that where the defendant bears the onus to unravel those things, it becomes more unfair for the defendant.

BEECH-JONES J:   So, it is the interaction between the passage of time and what you contend to be the onus on you to disentangle?

MS HEYWORTH-SMITH:   Yes. 

GAGELER CJ:   Can you translate that to an effect on the trial process?

MS HEYWORTH‑SMITH:   Yes, with respect, your Honour.  If one looks forward prospectively to acting for the respondent in this trial, on the basis of the material as it currently stands, there is psychiatric evidence to the effect that you cannot disentangle the causative factors as matter of medicine – as a matter of psychiatry.  You then have no evidence for decades from which you can point to these factors as having less weight or more weight than the other life stressors.  There is then the fact ‑ ‑ ‑

GORDON J:   When you say “no”, you mean no medical evidence?

MS HEYWORTH‑SMITH:   Yes, there is no report.

GORDON J:   Because you will have evidence from the complainant which will be able to be tested, consistent with the common law techniques.  So, you mean no other evidence other than the complainant’s evidence.

MS HEYWORTH‑SMITH:   The appellant has the appellant’s evidence, with respect.  The question is:  what can we do with that evidence?

GORDON J:   Yes.

MS HEYWORTH‑SMITH:   And the issue there is that if she gives evidence to say, I did not report it to any of the doctors – say, the Demlin abuse – because I did not remember the Demlin abuse and, after I did remember it, then it started to be noted in some of the records, for the sake of that point, assuming the trial judge accepts the appellant as being a witness of truth, who is credible and otherwise reliable, it is very difficult to see how the appellant could put to the witness that she is somehow unreliable in her – sorry, for the respondent to put to the appellant that she is somehow unreliable in how she has expressed and described the effect of the symptomology in the past.

GORDON J:   So, the trial process is in the absence of contemporaneous reporting evidence – is that the difficulty?  One cannot identify with the necessary level of precision the manner in which you would disentangle the various stressors.

MS HEYWORTH‑SMITH:   In this matter ‑ ‑ ‑ 

GORDON J:   I am talking about just this matter.

MS HEYWORTH‑SMITH:   Just this matter, yes, your Honour.  And it is not just that we cannot, as lay people viewing the record, engage in that disentangling exercise, the expert from whom evidence was adduced for the appellant cannot do it from a medical perspective.

GORDON J:   That may not be a complete answer, though, for a couple of reasons.  The first is the way the case is pleaded, which we have addressed; we will not go back over that.  The second is that there are cases where records are lost.  The question is whether or not it is unfair – manifestly unfair – that you have to meet that claim in the circumstances of this case.

MS HEYWORTH‑SMITH:   Yes, your Honour.

GORDON J:   At the moment the unfairness seems to be – I do not seek to trivialise it because it is not – an inability to refer to contemporaneous documents which might add some meat to the bones of each of the identified stressors.

MS HEYWORTH‑SMITH:   Yes, with respect to the causation aspect of the case.

GORDON J:   Sorry, that is what we are talking about.

MS HEYWORTH‑SMITH:   Yes, your Honour.

GAGELER CJ:   This is not a lost record case.  You do not point to records that previously existed that now do not exist.

MS HEYWORTH‑SMITH:   No, we do not, because we cannot evidence that there ever were documents.  It is part of that expression, that which is lost can rarely be known.  In this case, you will actually see from Ms Mills’ affidavit below that there was an extensive search of the records – many thousands of pages were searched by her – so we do not say that this is a case where the unfairness comes from the fact that we can identify that there would have been records that no longer exist.  What we can say is, of the records that we have, there is nothing that assists us.  This is not so much the causation case.  There is nothing to assist us with respect to identifying the circumstances or the allegations of breach in relation to the index events.

GAGELER CJ:   In relation to the causation case, no part of your argument is to point to lost records there either, is it? 

MS HEYWORTH-SMITH:   No, we do not point to it, but can I make one other point with respect to the causation case and the notion of reporting the lost records.  Your Honours had Dr Pant’s report to which I have referred, and he was taken to particular life stressors.  Questions were asked about those particular events by the appellant’s solicitors.  When the appellant was seen by Dr Khoo, and had a long interview with Dr Khoo, Dr Khoo actually took a history from her where she relates two events in her early life that are not related anywhere else. 

One, you read, she relates an event where she and a friend of hers were taken by men in a car to outside a house.  She refused to go into the house.  The friend went into the house, and she had to sit in the car feeling guilty that the friend was being sexually assaulted in the house, because there were men coming and going.  That is one.  That does not appear anywhere else.  And there is another where she says that, when she was a teenager and she went to live for a time with the family called the Teichmanns, that Mr Teichmann, under guise of wanting to teach her how to drive, took her into bushland and sexually assaulted her.  Those are not referred to anywhere else, but for the fact that she has conveyed them to Dr Khoo, and Dr Khoo has recorded them.

So, in terms of the almost Rumsfeldian approach, it is not just what we know we do not know, it is what we do not know that we do not know.  What other events would have been recorded or might have appeared in a documentary record that we do not have? 

GAGELER CJ:   Ms Heyworth‑Smith, before the luncheon adjournment, can you indicate how much longer the balance of your argument will take? 

MS HEYWORTH-SMITH:   Approximately 10 minutes, your Honour. 

GAGELER CJ:   And Mr Walker, reply?  Presumably, about the same? 

MR WALKER:   About the same. 

GAGELER CJ:   Very well, we will take the luncheon adjournment now.  The matter of RC will be called on immediately after the conclusion of this matter.  The Court will now adjourn. 

AT 12.42 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MS HEYWORTH-SMITH:   Your Honour, there are four more points that I will address, and I said 10 minutes before lunch that I might amend that, if I may, to 15.

The first is to address the appeal that is based on the affidavit from RS.  The descriptor given is that she was an eyewitness to the Demlin assaults, the Demlin sexual abuse.  Your Honour, we do not want to expand upon that very much beyond the written submissions because the point that is made against us was simply that the learned primary judge and the Court of Appeal were wrong to say that that amplified the unfairness to the respondent rather than in some way curing or ameliorating the unfairness to the respondent.

If one might describe it in this way:  RS, as a claimant relying on that evidence, would place the respondent in the same position in terms of the ability to contest it without other witnesses being available, as she is as a witness to be called on behalf of the appellant.  There is a particular factor with respect to RS’s affidavit that we would draw to your attention.  On behalf of the respondent, an affidavit was filed late last week from our instructing solicitor, Ms Foulds, that deposes to the fact that RS had withdrawn her claim subsequent to the Court of Appeal’s decision in this matter.  Paragraph 34 of our written submissions in this Court is predicated on the RS claim being extant and being progressed, because we have made the point in that paragraph that we would be constrained in terms of our ethical obligations to be able to speak to the litigant on the other side of the record of an existing claim.

GAGELER CJ:   This affidavit you refer to, has it been filed in this Court?

MS HEYWORTH-SMITH:   In this Court, yes, last week.

GAGELER CJ:   Is this fresh evidence on the appeal?

MS HEYWORTH-SMITH:   It is not intended to be fresh evidence on the appeal, your Honour.  The reason why it was filed was because we, on the respondent side of the record, have the obligation to draw to your attention that a matter that was misstated unintentionally in our written submissions must be corrected.  And rather than wanting to do that on my feet without evidence in support of it simply from the Bar table, we asked our instructing solicitor to actually file an affidavit to give it the evidential background.

GAGELER CJ:   So, it is an explanation as to why you are modifying or withdrawing a submission, is it?

MS HEYWORTH-SMITH:   Yes. 

GAGELER CJ:   And what is the modified submission you make?

MS HEYWORTH-SMITH:   The relevant submission is paragraph 34 of our written submissions, where we say the respondent is further prejudiced in the conduct of the trial by reason of the fact that RS has her own claim against the respondent said to arise from the alleged sexual assaults by Demlin upon her in the same circumstances, those that are in her affidavit.  At the time we wrote those submissions, we did not realise that RS’s claim had, in fact, been withdrawn with correspondence from her solicitor indicating that she had a terminal illness and wished instead to pursue the redress course, rather than continuing with her claim for common law damages.

GORDON J:   So, you would have us put a line through paragraph 34 and replace it with the oral submission you have just made – that is, it puts you in the same position to contest it because the other witnesses are not available.

MS HEYWORTH‑SMITH:   Pardon me, your Honour, for taking a moment.

STEWARD J:   I think you filed an amended set of submissions.

MS HEYWORTH‑SMITH:   Yes.  We prepared and filed an amended set of submissions.  The effect of that was to effectively render paragraph 34 in the past tense – that she “had” a claim – so that it is, in fact, factually accurate.  I wish to address the effect of that in relation to this appeal. 

BEECH-JONES J:   Can I ask, was this a factor relied on by the Chief Justice at first instance or the Court of Appeal? 

MS HEYWORTH‑SMITH:   The Chief Justice relied on the fact that RS had provided an affidavit – pardon me, I am just recalling it.  If your Honour could just give me a moment.

BEECH-JONES J:   Certainly.  Take it on board if you need to.

MS HEYWORTH‑SMITH:   Thank you.  I will just have my learned juniors pull up the most accurate answer I can give. 

BEECH-JONES J:   And when I say “this factor”, that is your inability, so it is said, to speak to her because she was a litigant.  But take that on board.  I will not take you off your course.

MS HEYWORTH‑SMITH:   I thank your Honour.  Just a moment, please.  If I could draw to your attention paragraph [83] of the Court of Appeal’s decision at page 63 of the core appeal book, where his Honour Justice Gotterson says:

I consider that the characterisation of the evidence of RS as being independent is unrealistic in context.  She has commenced her own proceeding against the State in which she alleges sexual assaults by Jack Demlin against her.  The State cannot itself obtain instructions from RS with respect to the current proceeding. 

GAGELER CJ:   Now your amended paragraph 34 effectively just puts your submission in the past tense, I think.

MS HEYWORTH‑SMITH:   Yes.  It places that submission in the past tense so that it indicates that, at the time of the Court of Appeal’s decision, the submission was on a correct factual footing.

GAGELER CJ:   Yes.

MS HEYWORTH‑SMITH:   But, at the time of the submissions before your Honours, that fact has changed.  She has withdrawn her claim.

GAGELER CJ:   We understand that, but we are concerned with the state of fact as found by the Court of Appeal.  We cannot enlarge the evidentiary basis on the appeal. 

MS HEYWORTH‑SMITH:   That is correct. 

GAGELER CJ:   You have given us an explanation as to why you have changed the phrasing of your submission.  Are we going beyond that?

MS HEYWORTH‑SMITH:   On this appeal, no, your Honour.  We accept that we are not relying on Ms Foulds’ affidavit as fresh evidence on the appeal, merely to explain why it is that we are drawing an incorrect fact to your Honours’ attention.  In terms of the change in circumstances between then and now, it may be a factor that there is, on your Honours’ consideration, as to whether or not to determine the matter in this Court or remit it.

GAGELER CJ:   Are you putting some submission to us?

MS HEYWORTH‑SMITH:   Sorry?

GAGELER CJ:   Are you putting some submission to us that goes to a discretion we might have?

MS HEYWORTH‑SMITH:   Your Honour, the instructions that we hold are to indicate that this is a case where, because – at least in that regard – the circumstances have changed, your Honours might consider it apt to remit it to the Court of Appeal for further consideration, if you are of the view that the Court of Appeal was incorrect – that it is a matter that could go back.  Our primary position, however, is that no error has been identified in the Court of Appeal’s decision such that you would reach that point.

The effect of the amendment is not merely to – sorry, the effect of the amendment is to place that in the past tense.  However, our submission is that it does not actually affect the outcome for the simple reason that even though RS may no longer be a claimant against the State for common law damages, she has indicated through her solicitor that she intends to pursue a redress scheme.  So, she is a claimant in one form, but we accept it is a different form. 

The other point is the withdrawal of her claim may mean that ethically the solicitors for the State can pick up the phone and call her and ask whether or not she would speak with us, but it does not change the fact that she is correctly characterised by the Court of Appeal as not being an independent witness.  Her claim against the State and her claim for redress is predicated on the matters that are contained within her affidavit.

STEWARD J:   The affidavit, from memory, said she has a terminal illness.

MS HEYWORTH‑SMITH:   Yes.

STEWARD J:   But we are not to take anything from that?

MS HEYWORTH‑SMITH:   I cannot place a submission.

STEWARD J:   No.

MS HEYWORTH‑SMITH:   The effect of it, however, is this is similar to perhaps, with respect, NW.  We are talking about people who are aged and infirm in this instance, and so there is always the possibility that should this matter proceed to trial, RS would not be available to give evidence.  She may be.  Your Honour, there is not evidence before you in this record to indicate one way or the other.  However, one looks at it from the two different perspectives that might apply.  If RS were available to give evidence at trial and be cross‑examined, the respondent is in the same position as it is right now.  It has an affidavit, it has no one to take instructions on about that affidavit and its contents or to take information about the surrounding circumstances as to the accuracy of what is in that affidavit.

If it were to be said, well, her credit or her reliability would be challenged, the same point applies:  how would that be done in circumstances where, if evidence came to the State, the respondent, because she had her claim and was therefore required under compulsion to disclose documents, those documents would be covered by the Harman principle.  So, again, the mere fact that the claim is no longer being pursued would not have changed the nature of those documents coming to the respondent’s attention.

BEECH‑JONES J:   You could seek leave to be relieved of the Harman principle and the State ‑ ‑ ‑ 

MS HEYWORTH‑SMITH:   Yes, your Honour, there is a process for doing that.

BEECH‑JONES J:   I could not see why properly that would be refused.

MS HEYWORTH‑SMITH:   Whether or not it is refused is – at this point, we do not even know whether or not it would be objected to, with respect, and it is difficult to see why it is that RS would consent to it in the circumstances.

BEECH-JONES J:   No, I am just saying there is at least a realistic possibility a trial judge would give you that leave, though.

MS HEYWORTH-SMITH:   It falls within, with respect, your Honour, that basket of potential things that a trial judge could do, but is no higher than that.

That point takes us then to the next part of the submissions, which is the question of availability of the rubric, the myriad common law techniques that could be applied by a trial judge in this matter.  The first thing that we say about that is the paragraphs of our written submissions – 56 and 57 – that apply were in no means intended to be insulting to trial judges, but to reflect the fact that most trial rulings, with respect to in particular admissibility and evidence and weight given to evidence, are on a discretionary basis. 

RS’s affidavit is a very good case in point. Let us say that by the time a matter such as this went to trial, RS was not available to be cross‑examined for whatever reason, and under section 92 of the Evidence Act1977 (Qld) the appellant sought to rely on the evidence that is in her affidavit, tendering it under that provision, by section 98 the court has the power to reject the affidavit if the interests of justice require it. But that power under section 98 is expressly in the legislation discretionary.

Our descriptor of the application of the techniques is to pick up the fact that if a judge were to reject an application to have it rejected on a discretionary basis, that is a very difficult decision to appeal, and so the respondent would be left with that affidavit going in, un‑cross‑examined and incapable of realistically challenging that exercise of discretion.  So, it is to indicate that the myriad decisions at trial, each of which might technically be capable of challenge, may well not be capable of challenge in a real sense because they are discretionary, and it is by no means to suggest that judges get it wrong at trial – that was not our intention at all – but to reflect what has been described as a discretionary test, quite literally reasonable minds may differ.

GAGELER CJ:   Do you not have to show that you cannot have a fair trial?

MS HEYWORTH-SMITH:   Yes, your Honour, and we say the confluence of circumstances of this case are such that we cannot have a fair trial.  In the course of submissions, the individual aspects of the case have been the subject of address.  One must not forget, with the greatest respect, that this is a case with a confluence of many circumstances and, in that respect, it is worth listing those circumstances to describe that point. 

The first is:  it is 60 years old.  The indexed events happened 60 years ago.  That is an extraordinary space of time for a matter such as this.  While there are abuse cases where the plaintiff was abused some number of decades ago, the ones that are 60 years old are few and far between.  The next is that the nominated assailants for four of the five cases are deceased, and the fifth is aged and infirm with a failing memory, and cannot admit to being able to provide sensible information about this.  He himself was a child at the time.

The next is that the persons who were adults at the time who might be able to give evidence beyond merely the alleged assailants – but of surrounding circumstances.  With respect to the Demlins, for instance, was it the case that Tottie Demlin, the wife, went to church on a regular basis, or did she in fact not go to church on a regular basis?  Was it the case that you would be able to see what was going on in the room at night?  All of those circumstances that might apply with respect to challenging the evidence as to the indexed events is lost to us, because there are no persons who were adults at the time who are still alive.

Then there is the scrutiny that you would consider on a case such as this in relation to the fact in terms of how the respondent might investigate, in relation to the fact that the person is nominated as witnesses to the Maude Phillips’ physical abuse were all children at the time.  It is put against us that we have not gone far and wide enough to find other people who may be able to give that evidence, but the thrust of it is anyone who could give evidence about it was a child at the time.

The appellant has entered the fray in relation to this point, and has relied on affidavits from a Ms Watson, a Ms Nielsen and a Ms Collins, none of whom actually describe seeing the appellant being abused.  The respondent does not have to go and try and seek out other people who were children at the time in order to show that its onus has been discharged in this case.  The appellant herself was a child at the time and has given evidence with respect to recollections that have, with respect to the Demlins events, improved – I use the word neutrally – since she was told of that abuse.  Your Honours have already heard our submissions with respect to the causation points, but that is one of the myriad circumstances in this case that demonstrate its unfairness.

GAGELER CJ:   Is the causation point any different from your first point, that is, it has been 60 years?

MS HEYWORTH-SMITH:   It is a feature of the fact that it has been 60 years, your Honour.  It is a feature of that fact; it makes it so much harder to address the causation because of that extraordinary length of time.

GORDON J:   Does the nature of the relationship between the appellant and the institution – and by “the institution”, I mean the relationship between the child at the time and the home – make a difference, that is, the nature of the duty?  In other words, is it possible that, by reason of the way in which the cause of action is pleaded, is it at least an allegation of a non‑delegable duty, that is, to ensure reasonable care was taken – does that matter?

MS HEYWORTH-SMITH:   I am just considering my answer to your Honour’s question. 

GORDON J:   Certainly, you might want to take it on and think about it.

MS HEYWORTH-SMITH:   The fact that there was a duty has been admitted.

GORDON J:   Yes.

MS HEYWORTH-SMITH:   A duty to take reasonable care to ensure the safety of the child.  The question of the content of that duty as pleaded is in issue, and the allegations with respect to that stem from circumstances such as the knowledge of the State at the relevant time, which cannot now be known.  So, it is, from that perspective of the allegations of duty of care, relevant.  I am not sure that I have entirely hit the mark with respect to your Honour’s question.

EDELMAN J:   Is the duty that is admitted a personal duty to take reasonable care for safety, or a duty to ensure that reasonable care is taken, the latter being a non-delegable duty?

MS HEYWORTH-SMITH:   It is a non-delegable duty.  The final point with respect to the common law techniques is that there is no particular technique that is hit upon against us in relation to the trial of this matter that

does actually provide amelioration of the unfairness that I have mentioned already, because the index unfairness and the one that was particularly found by the learned primary judge in the Court of Appeal was the fact that we do not have a contradictor, or, indeed, a person who can tell us about the foundational assaults – the index events.  And that is really key here.

The final point that I will mention is in relation to the change that has been created by GLJ in relation to whether or not the decision to stay or not stay is a discretionary one versus an evaluative one.  Our submissions are that even though both the learned primary judge and the Court of Appeal referred to the case law describing it as a discretionary decision, the actual analysis of those judgments reveals that what has taken place was not a discretionary decision.  There was no indication of a residual discretion having been exercised.

Rather, at both levels, the courts have evaluated the evidence that was before them in order to come to a view, particularly in the Court of Appeal.  The grounds of appeal to that court by the appellant had grounds 1 to 6, all of which were evaluative in nature, were challenging the correctness of the decisions that were made below, and then the seventh ground of appeal essentially appealed on the basis that the learned primary judge had fallen into discretionary error because of the matters in 1 to 6.

Then, when your Honours look at the Court of Appeal decision, Justice Gotterson, providing the reasons, has gone through each one of the grounds, some of them, where convenient and appropriate, in combination, and has treated grounds 1 to 6 on the basis as to whether or not they were correct.  Then, in relation to the one overarching umbrella ground, asserting that, for all those reasons, it was a wrong exercise of discretion, has dealt with that in three lines right at the end of the judgment that essentially says, because I dismissed those grounds it is not a discretionary breach.  So, even though those decisions were made before GLJ, in fact they were made on a basis that is consistent with what was said in GLJ.

Unless I can be of further assistance, your Honours.

GAGELER CJ:   Thank you.  Mr Walker.

MR WALKER:   Please the Court.  The respondent admitted that he had owed a non‑delegable duty.  You will see that in volume 1 of the appellant’s further materials at its page 21 in paragraph 3(a).  The excursus by Justice Leeming in CM [2023] NSWCA 313, particularly the passage that concludes in his Honour’s paragraph 91, is one which accepts, appropriately, the holding of this Court extending beyond the particular case of GLJ with respect to the effect of section 6A – 11A in our present case.

When one reminds oneself of the way that this Court in GLJ, particularly paragraphs [56], [47], [51] and [52], deals with what might be called the effect in the new world of the considerations dealt with by this Court in Batistatos, it is clear, with respect, that Justice Leeming is correct to observe that there is a difference and as we put in our proposition 1, and as his Honour puts, there will now be some cases determined differently when it comes to an application for a stay.  That, in our submission, is the proper reading of that passage which, of course, can itself do nothing to alter what this Court did in GLJ.

With respect to one of the several unavailable persons – which is a concept playing a large part in the argument I am replying to – it is important, of course, to appreciate that as between what might be called witnesses at one end of the spectrum through to criminal perpetrators at the other end of the spectrum, it is unlikely there will be any general rule that will be applied in relation to an application for a stay on the basis of prospective abuse of process, which is the matter that is in question here.

In particular, for the reasons identified in GLJ, speculation concerning the response of an alleged perpetrator is such as to provide an enormous range of possibilities, all of which are beyond any evidence that was available to the Chief Justice in determining the stay.  But if one takes, for example, Maude Phillips, the complaint advanced in address in common with the written argument by our friends is, in my expression, that she cannot be conferenced because she is dead.  That is then repeated, of course, with respect to a number of other perpetrators and it may even be true with respect to some people who may not be perpetrators but might be witnesses.

All of that is relied upon as if it amounts to prospective unfairness, which in the “new world” of 11A of course puts at nought the notion that it is now to be expected that cases may be heard a long time after the events.  You cannot read the statute, as Justice Leeming has pointed out, as not having caused that because of the no‑limit provision with respect to the permanent stay jurisdiction.

What that means is that one is left with a position with which the courts were familiar long before 6A or 11A.  This Court in GLJ, paragraph [54], quoted, with respect, a pungent demonstration by Chief Justice Gleeson sitting in the Court of Criminal Appeal in New South Wales to that very effect – missing, dead, uncooperative, unreliable witnesses are the stuff of litigation, and not only in crime, and they are not to be treated as the hallmark of a case that should not be heard lest the administration of justice be brought into disrepute.

In our submission, it would be brought into disrepute if the court declines – except in the extreme and exceptional cases for which a permanent stay is the remedy – to do the best it can with what in every case will be more or less imperfect materials.  With respect to the untangling the matter in which Purkiss v Crittenden and its evidentiary shift of burden arises and is relied upon by our friends, we would respectfully submit that it confuses a difficulty forensically with an unfairness of the trial in which it is encountered.

It is an everyday proposition of litigation for solicitors and barristers that there are difficulties in the case, and they may include that a relevant event was not witnessed by anybody who can be called by the defendant against whom the existence of that event is proffered as a contention in the other side’s case.  That is undoubtedly a difficulty, that they cannot find an eyewitness to give a different account.

It may mean, if the plaintiff’s account is accepted, that the defendant will lose that point.  None of that is unfair.  Covert child abuse is unlikely to throw up many other eyewitnesses.  Dormitories may well be a setting in which there is an exception to that, as this case perhaps illustrates.  But there can be no principle guiding the identification of an impending or a threatened abuse of process by an unfair trial from the fact which arises from the history which produces the grievance that there was nobody else according to all the material available to both sides.

It is not unfair to find yourself faced with a claim against which you cannot marshal evidence to contradict. That will be very often true in the case of an account accepted as honest and reliable by a person who was covertly criminally interfered with by somebody who either refuses to give evidence or is dead. The notion that that would produce the abuse of process that requires, notwithstanding section 11A, that the case should be permanently stayed is one which, in our submission, shocks the sensibility that is involved in considering an outcome that would bring the administration of justice into disrepute.

As to the disentangling, these are matters which – I do not want to repeat what was written and said in chief but, in short compass – those are matters which really are the daily fare of common law courts.  And there is nothing special so as to excite any special sensitivity to the question by reason of it being a psychiatric injury, and there is nothing special by reason of it being considered in the context of an application for a permanent stay.

We know that at trial, without any pretence to precision, partly assigning numerically‑expressed proportions of responsibility to life events which have produced a plaintiff in a particular state of affairs, no pretence of precision is sensible, but it has never deterred common law courts from doing the best they can.

In our submission, it is a classic example where the allocation of the onus, and the possibility of it being shifted – common law responses surely dictated by an understanding of what is just or fair – substantively could never, of itself, produce a procedural unfairness.  We are then simply left with the fact that it is intended that there be these cases heard in order to cease repetition of the substantive injustice identified by the Royal Commission.

A deal was made of the fact that the respondent does not have a resource – evidentiary, supposedly – in the form of earlier reports of the child abuse in question.  We do not suppose that a grim version of the statute of frauds is being proposed, that a person who, injured as a child, who did not record it in writing cannot later be heard to advance a claim for it.  That would be awful.  Neither would the common law under the panoply of a permanent stay application re‑invent some of the now discredited requirements for corroboration of certain kinds of people’s evidence.  Nor can Evidence Act warnings about the reliability of certain kinds of people’s evidence be transmogrified into some element of impending unfairness so as to produce an abuse of process that a permanent stay should arrest.

It turns out, however, that we are not talking about a complaint that had all this been sued on earlier – one asks, how much earlier – then there would have been documents to interrogate.  It turns out that the respondent does not posit any such class of impoverishment of evidence by reason of the lapse of time.  It is a complaint about – I think I quote – a documentary record we do not have.  In our submission, again, that is another way of confusing a difficulty – which, by the way, is a difficulty that attends both sides in the adversarial contest – rather than an unfairness.

With respect to RS, first of all, of course, there is no possibility of fresh evidence, and this is a true appeal, but with respect to her position, which is still called in aid, as I understand it – and we do not have any objection to this – as part of the argument against us, we say on the merits it is a bad argument for these reasons.  Whether she had her own claim or not, she had given evidence and plainly in a way supportive of our client’s case.  It is, with respect, not appropriate for Justice Gotterson in paragraph [83] of the Court of Appeal to have said that on that account and on account of herself being a claimant, she is not independent.  Perhaps that is a compressed expression for the fact that she has her own interests, but it ought not to be taken as some kind of preliminary destruction of her credibility.

She is not independent, in the sense that she put her oath to a version of events which very definitely presents a view of matters.  That does not mean it is not independent.  She has her own grievance – according to the position as obtained – and that means, of course, that the evidence is given in her own interest, as well as in the interests of my client.  But whatever “not independent” means, it is absolutely no reason – could not possibly inform the notion of there being an unfair trial.  The reasons that are said to produce this slightly puzzling label, “not independent”, are reasons that the respondent has well and truly expatiated on, and they will put it at trial, if there is a trial.  All of that will be taken into account.  There is nothing unfair about that.

It then, with RS, came down to the proposition that, by reason of her, I will call it, alignment – that is, the place she plays in the litigation – the respondent will not be able to get instructions from her.  Whether or not she was making a claim against the respondent does not matter because the respondent has no legitimate expectation that they will be able to get instructions from anybody who does not want to speak to them.  It is simply wrong to say a case is unfair on account of the fact that there might be, say, in a hypothetical case, 50 former residents of a dormitory, all of whom have claims, none of whom will talk to the people representing the government who refuses to admit their claim.  No possible criticism would be made in this Court of people who took the approach that they were going to give evidence in their own case and in support of their colleagues’ cases, and they do not intend to be conferenced by people who are then going to cross‑examine them. 

It is very unusual to call a witness who you expect that you should, as a matter of your duty to the court and to your client, make available to the other side who is about to cross‑examine to be conferenced.  Experts, of course, are a special case.  But as to lay witnesses that is, in our submission, utterly unrealistic, unsubstantiated ground for alleging anything in the nature of unfairness.

With respect to another of the arguments about the common law techniques which we say plainly render it entirely reasonable to expect a fair trial in these proceedings, was marshalled the notion of what would happen if RS’s affidavit were the subject of argument concerning its admission – that is, its potential use by the tribunal of fact – notwithstanding she was not available to be cross‑examined.  That is a matter which, as my learned friend demonstrated by the argument she put about it, is part of the toolkit of the court that Parliament has made available, where true discretions are exercised in the interests of justice in the circumstances of the particular case.

One cannot say – because the interests of justice are perhaps not a bright‑line judgment, or because reasonable minds might differ, being a hallmark of the exercise of a discretion – that a trial in which a judge earnestly sets about to make a decision in the interests of justice concerning the reception of the particular kind of evidence, there is any unfairness threatened.  That is incoherent for the court, on the one hand, to appreciate the judge has made a decision in what is perceived to be in the interests of justice, but on the other hand, because of the arguable nature of that, to say, and that renders the case unfair to be tried.

GORDON J:   Is that any more to say other than it is too hypothetical?  Is that another aspect of it?

MR WALKER:   It is also speculative, which is perhaps the epithet I would prefer, your Honour.  It cannot possibly be wrong to call something hypothetical when one needs so often in an argument to test what would happen, but for a factor in question, but certainly, it is speculative in the sense that this Court dealt with in GLJ.

My learned friend encapsulates a large aspect of the alleged unfairness of a prospective trial by – we think correctly – doing a head count that says that there are no adult witnesses – that is, to the historical events – still alive, and correctly, by reference to pre‑section 11A perceptions of appropriate litigation, describes the intervening period between those events and a trial or query, the death of those witnesses at various times and a trial as an – and I quote – “extraordinary length of time”.  So it is.

That is what the Royal Commission had identified and the legislation has addressed, that that which was so extraordinary that it represented an extreme and exceptional state of affairs where the reaction of justice was not to administer it by trial, but rather to prevent a trial – which, of course, is extreme and exceptional – that even these extraordinary lengths of time would become, as it were, the expected, usual observation of a trial court in a case governed by section 11A. Or, to put it another way, to complain that there are no adult witnesses still alive is really to say that section 11A will simply not avail people in precisely the vulnerable position where one would most expect that the response, we say plainly, of Parliament – and we urge equally in the court – would be that so long as the court can approach the fact‑finding using familiar techniques adjusted for the “new world” introduced by section 11A, of course there should be a trial.

May it please the Court.

GAGELER CJ:   Thank you, Mr Walker.  We will reserve our decision in this matter.  Counsel in this matter are excused from further attendance,

although are free to remain at the Bar table if they so choose.  We will adjourn for five minutes before proceeding on the hearing in RC v The Salvation Army.

AT 3.00 PM THE MATTER WAS ADJOURNED