Phillips v Stanzer
[2022] VSC 355
•23 June 2022 (revised)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2021 01385
BETWEEN:
| ANGELA MARIA PHILLIPS | First Plaintiff |
| and | |
| JACINTA AGNES ANNE SAMIAKOS | Second Plaintiff |
| v | |
| CHRISSY STANZER (AS ADMINISTRATOR OF THE ESTATE OF THE LATE JOHN FORDE) | Defendant |
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| JUDGE | Irving AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 March 2022 |
DATE OF RULING: | 23 June 2022 (revised) |
CASE MAY BE CITED AS: | Phillips & Anor v Stanzer |
MEDIUM NEUTRAL CITATION: | [2022] VSC 355 |
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PRACTICE AND PROCEDURE – Permanent stay – Alleged historical sexual abuse – Alleged perpetrator deceased – Delay – Ability of the defendant to participate in a fair trial and test the evidence – Administration of justice – Limitation of Actions Act 1958 (Vic) – Connellan v Murphy [2017] VSCA 116 – Longman v The Queen (1989) 168 CLR 79 – Grant v Bird [2021] VSC 380.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr A C Dimsey of counsel | Jonathan Kemp & Associates |
| For the Defendant | Mr M Maconachie of counsel | Priest Legal |
HIS HONOUR:
Introduction
Angela Phillips (first plaintiff) and Jacinta Samiakos (second plaintiff) are sisters. They allege their uncle, the late John Forde, sexually abused them as children. In this proceeding, they seek damages from Mr Forde’s deceased estate for psychiatric injury suffered as a result of the abuse.
This ruling concerns an application by Chrissy Stanzer, the administrator of Mr Forde’s estate (defendant), that the plaintiffs’ proceeding be permanently stayed.
For the reasons that follow, I have decided that it would be manifestly unfair to the defendant to allow the proceeding to continue and so a permanent stay should be granted.
Background
The first plaintiff alleges Mr Forde sexually abused her on five separate occasions between about 1962 and 1971, when she was aged between four or five and 12 years old.
The second plaintiff alleges Mr Forde sexually assaulted her in about 1971, when she was 12 or 13 years old.
In 2018, the first plaintiff decided to make a statement to police following a chance conversation with a family member about the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse. She reported the abuse to police at Narre Warren police station in Victoria and was referred to the Sexual Offences and Child Abuse Investigation Team at Dandenong. The second plaintiff also made a statement to police in relation to the abuse.
Detective Senior Constable Kerrie Perry of the New South Wales Police Force was the officer in charge of the investigation of the plaintiffs’ allegations. That investigation began on 20 May 2018, when Mr Forde was still alive. On 28 April 2020, police attended Mr Forde’s residential address in Northmead, New South Wales, intending to inform him that he was a suspect in the matter and offer him the opportunity to participate in a police interview. On arriving at the property, the police discovered that it was advertised for sale. The following day the police were able to find out that Mr Forde was living in Port Macquarie, New South Wales. The police arranged for Port Macquarie police to contact Mr Forde to ask if he would participate in an interview. However, on 29 April 2020, Mr Forde had been admitted for palliative care to Wauchope Base Hospital. Mr Forde died on 1 May 2020.
Detective Senior Constable Perry compiled a brief of evidence from her investigation. The brief contains statements from the first and second plaintiffs and from their sister, Bernadette Klok. The brief also contains statements from the plaintiffs’ aunts, Margaret Fury and Wendy McCarthy, about conversations they had with the plaintiffs’ late mother, Della De-Lange.
Based on the investigation, Detective Senior Constable Perry’s opinion was that there was a very strong case to charge Mr Forde with multiple assaults with acts of indecency. But for Mr Forde’s death, Detective Senior Constable Kerrie Perry says she would have proceeded with these charges.
All of the alleged assaults took place at one of three addresses in New South Wales in the areas of Kildare Road in Doonside, Richmond Road in Colebee and O’Connell Street in North Paramatta. It was common ground that each of these residences is no longer standing, having since been demolished and built over.
The first plaintiff described five incidents to the police.
The first incident occurred on an unknown date when the first plaintiff was aged four or five. The first plaintiff was playing with other children in the porch area of her home in what was then known as Blacktown but is now known as Colebee, New South Wales. Mr Forde put his arms around the first plaintiff’s legs to stop her climbing and jumping from a wall. Mr Forde ran his hands up the first plaintiff’s skirt a number of times, eventually reaching under her underwear and rubbing his hand up and down against her buttocks. Mr Forde ceased when the first plaintiff told him she wanted to go back to playing with the other children.
The second incident occurred on an unknown date when the first plaintiff was aged about seven at Mr Forde and his wife’s home in Doonside, New South Wales. The first plaintiff was left with Mr Forde at the house while her mother and Mr Forde’s wife went shopping. Mr Forde took the first plaintiff to a small bedroom in the house and encouraged the first plaintiff to try on some stockings. Mr Forde lay on the bed with the first plaintiff laying on his stomach. Mr Forde pulled the first plaintiff’s underwear down past her knees and rubbed from her buttocks to her vagina, parting the outer labia. The first plaintiff recalled her vagina being sore after the incident.
The third incident occurred on an unknown date in the early 1970s, while the first plaintiff was visiting Mr Forde and his wife at their new address in North Parramatta, New South Wales. While the first plaintiff’s mother and an aunt were in the kitchen, Mr Forde had the first plaintiff sit at his feet on the floor of the lounge room and rubbed his shoe against the first plaintiff’s vagina through her underwear. This went on for a number of minutes.
The fourth incident also occurred on an unknown date in the early 1970s, at Mr Forde’s North Parramatta home. Mr Forde was looking after the first plaintiff and a number of other children in the evening. The first plaintiff recalled wearing a nightie as it was warm and sleeping on the floor in the lounge room between two other children to attempt to protect herself from Mr Forde. At some point in the night, Mr Forde woke the first plaintiff and they went out to the porch area. On the porch, Mr Forde sat the first plaintiff down on his knee and placed his hand down the front of her underwear, rubbing her vagina and parting the outer labia. At some point, the first plaintiff’s mother returned to the house while the first plaintiff was still outside and scolded her for still being awake.
The fifth incident occurred at the first plaintiff’s home in Colebee, New South Wales, between 5 May 1971 and 5 May 1972, when the first plaintiff was 12 years old. Mr Forde and his wife had come to visit. The first plaintiff was sent outside for being too noisy. Mr Forde joined the first plaintiff outside and encouraged her to join him around the side of the house. Once there, Mr Forde put his hand up the first plaintiff’s dress, inside her underwear and touched her buttocks. Mr Forde ceased a short time later when interrupted by someone coming or calling out.
In the mid-1970s, the first plaintiff complained to her mother about the incidents. She believes her mother spoke to someone at the local church about it but did not make a formal report to any authority. Over a number of years, the family spoke quietly about the matter and discovered that the first plaintiff’s two younger sisters also alleged they were sexually abused by Mr Forde.
The second plaintiff also complained to police about an incident involving Mr Forde when she was 12 or 13 years old. The second plaintiff told police that between 23 October 1971 and 23 October 1972, she and her mother were visiting her aunt at Mr Forde’s North Parramatta home. While her mother and aunt talked, Mr Forde offered to take the second plaintiff out the back to look for possums. The second plaintiff’s mother told her to go with Mr Forde. Mr Forde took the second plaintiff to a back shed/garage where he placed her on a work bench. He then held the second plaintiff around her waist and placed his right hand under her dress, inside her underwear and on her vagina. The second plaintiff felt pain while Mr Forde fondled her vagina and told Mr Forde she wanted to get down. Mr Forde told her to ‘shoosh’ but stopped when the second plaintiff’s objections became louder. At this point, Mr Forde pulled his fingers out of the second plaintiff’s underwear and smelt them. The second plaintiff got off the work bench and ran inside.
The second plaintiff told police she had disclosed Mr Forde’s abuse to her mother at the same time the first plaintiff was talking to her mother about Mr Forde’s abuse. The second plaintiff did not recall whether Ms Klok was also there at the time but does recall thinking that all three sisters had been abused by Mr Forde.
The second plaintiff told police she overheard a telephone conversation between her mother and Mr Forde during which her mother told Mr Forde that he had to tell his wife about the abuse or the second plaintiff’s mother would.
The second plaintiff told her husband about the abuse shortly after her marriage in 1990.
Ms Klok, the first and second plaintiff’s sister, also made a complaint to police about Mr Forde. Ms Klok told police that an incident occurred on a date between late October 1968 and 26 December 1969, at her home in Colebee, New South Wales, when she was eight or nine years old. Mr Forde was visiting the family. While seated on a set of swings in the backyard he had recently built, Mr Forde called Ms Klok over to sit on his lap. When Ms Kolk sat on Mr Forde’s lap, he reached his right hand around her waist and down over the top of her shorts and rubbed her vagina for about 10 minutes.
Ms Klok told police she recalled being with the first and second plaintiff and their mother at a time prior to the birth of Ms Klok’s son in 1984. During the conversation with their mother, the first plaintiff raised Mr Forde’s abuse, causing the second plaintiff and Ms Klok to tell their mother that Mr Forde had also abused them. Ms Klok was present when her mother raised the abuse with Ms Klok’s uncle, Michael, a police officer in the early 1980s. Ms Klok recalls overhearing her uncle tell her mother that nothing could be done because of the lapse of time since the abuse.
As part of their investigation the police arranged what is known in Victoria as a ‘pretext’ call between the first plaintiff and Mr Forde. A pretext call is a recorded phone conversation between a victim of abuse and the alleged abuser in which the victim talks about the abuse. The first plaintiff called Mr Forde on 26 May 2019 and had a seven‑minute conversation with him. The transcript of that phone call records the first plaintiff asking Mr Forde if he remembered specific incidents of the abuse. When asked by the first plaintiff about each incident, Mr Forde told the first plaintiff that he could not remember and could not say that he committed the abuse, but ‘if I have done anything like that I’m very sorry.’
The first and second plaintiff have filed a notice of intention to adduce tendency evidence pursuant to s 97 of the Evidence Act 2008 (Vic). The tendency they seek to adduce evidence of is Mr Forde’s tendency when in the physical presence of the first and second plaintiff or Ms Klok individually, to have had a sexual interest in that individual. They also seek to adduce evidence of Mr Forde’s tendency to create or take advantage of situations in which he was alone with one of his nieces including in their home or his home and touching or fondling their genitals and other intimate parts of their bodies.
Margaret Fury is the sister of the first and second plaintiff’s mother. In a witness statement to police dated 27 November 2018, Ms Fury recalled that several years prior to 1989, the first and second plaintiff’s mother warned her that Mr Forde had interfered with her children and that Ms Fury should be careful around Mr Forde. The first and second plaintiff’s mother reiterated this warning to Ms Fury around 1989.
Wendy McCarthy is the aunt of the first and second plaintiff by marriage. Ms McCarthy made a statement to police on 4 December 2018, in which she recalled the first and second plaintiff’s mother warning her to watch her children around ‘Fordey’.
Mr Jeffrey Cummins, psychologist, prepared a psychological report for the first plaintiff. Mr Cummins assessed the first plaintiff on 10 June 2021. On the basis of that assessment, Mr Cummins formed the opinion that the first plaintiff had been and continues to suffer from post-traumatic stress disorder (PTSD) in response to being sexually abused between the ages of approximately four or five and 12 or 13 years old. Mr Cummins recorded that the first plaintiff had undertaken intensive psychotherapy with a psychiatrist after a work-related bullying incident in March/April 2009. Mr Cummins assessed the first plaintiff as being mildly anxious and depressed.
On 7 June 2021, the second plaintiff was also assessed by Mr Cummins. In Mr Cummin’s opinion, the second plaintiff has developed moderate symptoms of PTSD in response to being sexually abused as a child of around four or five years old. She has residual symptoms of anxiety and depression. Mr Cummins notes that the second plaintiff reported the abuse to her sister and mother when she was aged 11 or 12 years old and subsequently to her first boyfriend, her current husband, her own daughters and treating psychologists.
On 24 November 2021, Ms Stanzer swore an affidavit in support of her application that the proceeding be permanently stayed. Ms Stanzer is the administrator of Mr Forde’s deceased estate. She is also the sole beneficiary of Mr Forde’s residuary estate which is made up of a one-third share of a property in Northmead, New South Wales, and some modest cash amounts. Ms Stanzer estimates that the estate currently comprises funds of approximately $260,000, held in a solicitors’ trust account. This figure does not include any further costs associated with this proceeding.
Ms Stanzer has never met the plaintiffs. She had no knowledge of the plaintiffs’ allegations against Mr Forde before the proceedings were commenced.
Ms Stanzer first met Mr Forde in the early 2000s, when he was her neighbour in Northmead, New South Wales. They became friends and Mr Forde would often share meals with Ms Stanzer and her family. In 2015, Ms Stanzer moved to Port Macquarie. Before her move, Ms Stanzer had noticed that Mr Forde had started to decline both physically and mentally. Mr Forde would visit her in Port Macquarie and stay for months at a time. On his visits, she observed that his decline had progressed. According to Ms Stanzer, Mr Forde was becoming increasingly forgetful, easily confused, getting lost in familiar places, repeating himself and wandering outside at night and becoming lost. Ms Stanzer says that around this time (which I have taken to mean between 2015 and about 2018), Mr Forde was diagnosed with epilepsy after having seizures. He could no longer remember how to catch the bus to Parramatta to buy groceries. Ms Stanzer would travel to Sydney to take Mr Forde to medical appointments.
Mr Forde lived with Ms Stanzer for about the last year of his life. Ms Stanzer deposes that by June 2019, Mr Forde’s health declined significantly with symptoms she understood to be consistent with dementia or Alzheimer’s disease. He forgot who he was and was not oriented to place, time or date.
Ms Stanzer deposes that she believes in Mr Forde’s innocence ‘unequivocally’ and has been personally devastated by the plaintiffs’ allegations. She is deeply concerned that Mr Forde cannot defend himself or his reputation.
Relevant legal principles
The legal principles relevant to an application for a permanent stay were not in dispute.
After considering the relevant authorities[1], the Court of Appeal in Connellan v Murphy[2] (Connellan) stated:
[1]Jago v District Court of New South Wales (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378; Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 226 CLR 256.
[2][2017] VSCA 116, [54], per Priest, Beach and Kaye JJA.
In determining whether a proceeding should be stayed as an abuse of process, the authorities to which we have already referred disclose the following propositions:
1.In order to justify the grant of a stay, a defendant bears a heavy onus. A stay is ordinarily only granted in exceptional circumstances, because it effectively brings to an end litigation without adjudication.
2. The categories of abuse are not closed.
3.In particular, the concept of an abuse of process is not confined to cases in which, if the action were to proceed, the defendant would not receive a fair trial.
4.The fundamental test is whether, in the circumstances, the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people.
[citations omitted]
In the case of Grant v Bird (Grant), [3] Keogh J considered an application for a permanent stay of a proceeding involving alleged sexual abuse of the plaintiff when he was eight or nine years old, some 20 years earlier. The plaintiff remembered the abuse while engaged in transcendental meditation. The alleged perpetrator was a priest who had died prior to the commencement of the proceeding. In his reasons for granting the permanent stay, Keogh J noted the amendment to the Limitation of Actions Act 1958 (Vic) (Limitation of Actions Act) to remove the limitation period for a cause of action founded on personal injury resulting from sexual abuse of a minor. Keogh J extracted a relevant part of the Explanatory Memorandum to the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) (Amending Act), referring to the Court’s power to control or dismiss proceedings where a court determines that the lapse of time has had a burdensome effect on the defendant that is so serious that a fair trial is not possible. His Honour referred to principles identified in Connellan and McHugh J’s comments about the effect of delay on memory in Longman v The Queen[4] (Longman). Keogh J then stated[5]:
[3][2021] VSC 380.
[4](1989) 168 CLR 79.
[5][2021] VSC 380, [38]-[39], [41], [50]-[51], [54]-[55].
Whether an absence of evidence which compromises the ability of a party to deal meaningfully with the claim against it justifies granting a stay requires consideration of whether the party has made adequate enquiries to discover evidence, and whether the inability to meet the case put against it is due to that party’s own neglect or default because of a failure to take timely steps to gather evidence.
If it is determined that the proceeding is an abuse of process because a fair trial is not possible, there is no discretion to refuse a stay.
…
There is a tension in the provisions of the CPA [Civil Procedure Act 2010 (Vic)] which require that the court strike a balance between case management considerations and the need for a fair trial.
…
The plaintiff first reported the alleged abuse more than 20 years after he said it occurred. Because decades had already passed the defendant could not investigate the alleged abuse and surrounding circumstances at a time when memories were fresher and could be expected to be more reliable. That difficulty is compounded by the vagueness of the plaintiff’s allegation that the abuse occurred in about 1980 or 1981. The combination of delay and the uncertain timing mean there is no opportunity for the defendant to explore the surrounding circumstances of the alleged abuse and determine whether those circumstances contradict or corroborate the plaintiff’s allegation.
The plaintiff may have an honest recollection of the alleged abuse. However, as the judgment of McHugh J in Longman demonstrates, that honest recollection may not be reliable. There are three reasons for this. First is the lapse of time between the alleged abuse and the plaintiff’s recall of the event in 2001, and the further lapse of time until trial. Second, the plaintiff’s recollection of an event which occurred when he was a child may be particularly susceptible to error. Third is the plaintiff’s recall of the alleged abuse during transcendental meditation after having no specific thoughts of it for about 20 years.
…
Because it cannot now know what Father O’Brien or Mr Powell would say in response to the allegation of abuse, or test the allegation by timely investigation of surrounding circumstances, the defendant cannot effectively defend the case brought by the plaintiff. The most the defendant can hope to achieve is to challenge the plaintiff’s account because he did not report the abuse for over two decades, only recalled it during transcendental meditation, and has given histories which the defendant argues are materially inconsistent. The defendant has no real opportunity to participate in the hearing by contesting the allegation of abuse, or admitting it on an informed basis.
Prejudice to the defendant extends beyond the issue of whether the abuse occurred. The defendant will also face difficulties, because of the lapse of time, investigating and contesting at trial the allegations of breach of duty, the claim based on vicarious liability, causation of the plaintiff’s mental health conditions, and assessment of damages.
[citations omitted]
Moubarak by his tutor Coorey v Holt[6] involved an appeal in the New South Wales Court of Appeal against a decision of a trial judge not to grant a permanent stay in a civil claim for damages for childhood sexual assaults. The alleged assaults took place in 1973 or 1974, when Ms Holt was 12 years old. The proceeding had been commenced in 2016, approximately 42 years after the alleged assaults. The application for a permanent stay was made in 2018, on the basis that Mr Moubarak had advanced dementia and could not participate in the proceeding and so a fair trial would not be possible.
[6](2019) 100 NSWLR 218.
In the lead judgment of Bell P, the principles governing permanent stays of proceedings were confirmed in terms comparable to those identified by the Court in Connellan. Bell P discussed the unfairness that may arise from the passage of time in the following terms:
This involves what Lord Sumption in Abdulla referred to as the impoverishment of the evidence available to determine the claim. This consequence and its significance will inevitably vary from case to case. It is less likely to be a critical factor where the resolution of a case turns predominantly on documentary evidence, particularly in an age of extensive data retention. Delay in such a case is unlikely to have a bearing on the fair and just resolution of such a dispute at trial, however long after the events in question that trial occurs. By way of contrast, the impoverishment of evidence will be more acute where a trial is exclusively or heavily dependent on oral evidence and the quality of witnesses’ memory and recollection.[7]
[7]Ibid [77].
Defendant’s submissions
The defendant submits the continuation of this proceeding would be manifestly unfair to her and bring the administration of justice into disrepute among right-thinking people because:
(a) the allegations the subject of the proceeding are said to have occurred on unspecified dates between 1962 and 1971 – a period of between 51 and 60 years ago;
(b) there were no third-party eyewitnesses to the alleged offences;
(c) the buildings in which the offences are alleged to have occurred no longer exist;
(d) all of the potential witnesses who were adults at the time of the alleged offences and might have given evidence about the surrounding circumstances are dead;
(e) there are no contemporaneous records relating to or supporting the allegations;
(f) the only evidence upon which the plaintiffs’ claims can be determined are very young childhood memories of events said to have occurred more than five decades earlier;
(g) Mr Forde is dead and therefore not available to give evidence at the trial; and
(h) no police statement was obtained from Mr Forde before his death.
The defendant submitted that, as a result of the above, she is left in a position where she cannot possibly defend the proceeding.
Plaintiffs’ submissions
The plaintiffs submits that the following are relevant to the Court’s consideration of the defendant’s application for a permanent stay:
(a) the stay was not made in a timely manner;
(b) whether the abuse occurred is the key issue in dispute between the parties;
(c) the defendant’s submission that Mr Forde’s death deprives her of the possibility of a fair determination of that issue should not be accepted;
(d) it cannot be correct as a matter of legal principle that the death of a perpetrator of sexual abuse deprives his or her victim of the opportunity to seek compensation for injuries arising from that abuse by way of a grant of a permanent stay;
(e) it should not be assumed that Mr Forde, if he were alive, would have denied the alleged abuse. It is noteworthy that Mr Forde did not deny the allegations when given the opportunity during the pretext call between the first plaintiff and Mr Forde;
(f) the evidence against the defendant, comprising of each plaintiff’s evidence, the tendency evidence and evidence corroborating contemporaneous reporting of the abuse, is very strong;
(g) Detective Senior Constable Perry’s evidence is that, had Mr Forde not died, he was to be charged with criminal offences in relation to the abuse;
(h) a fair trial is not synonymous with a perfect trial. The defendant retains the right to test the evidence of the plaintiffs and Ms Klok at trial;
(i) the extent of potential disadvantage to the defendant does not constitute exceptional circumstances upon which a stay should be granted;
(j) the defendant has not demonstrated the manifest unfairness in this case that would bring the administration of justice into disrepute should the matter proceed. Conversely, it would be manifestly unfair if the plaintiffs were denied the opportunity to give their evidence; and
(k) the facts of this case distinguish it from Connellan and Grant.
Having regard to these factors, the plaintiffs submit that the defendant’s application for a permanent stay should be refused.
Consideration
Each application for a permanent stay must be considered in light of the principles identified in the authorities, but on its own facts. It is only by weighing the particular facts of a case that the Court can determine whether the proceeding would be manifestly unfair or would otherwise bring the administration of justice into disrepute among right-thinking people.
As has been said, a fair trial is not synonymous with a perfect trial. The absence of an important witness will not necessarily mean a fair trial cannot be obtained. That is also the case where other material evidence has been lost.
Mr Forde’s death is, however, significant for a number of reasons.
First, given Ms Stanzer’s observations about his declining mental state, Mr Forde’s responses to the first plaintiff’s questions during the first plaintiff’s pretext call on 26 May 2019 have to be approached with caution. It is by no means certain that his responses from the transcript of that call could be regarded as a meaningful record of his responses to the allegations put to him by the first plaintiff.
Second, Mr Forde is not available to provide any instructions about the allegations. Absent his responses to the allegations in the pretext call, there is no record of Mr Forde’s responses to the allegations that have been made by the first plaintiff. The allegations made by the second plaintiff and Ms Klok, on the evidence before the Court, were never put to Mr Forde.
Third, and bearing in mind that given the effluxion of time, parties cannot always know or recall what evidence might have been available, Mr Forde is not available to identify relevant investigations that should be pursued. The fact the abuse is said to have occurred over 50 years ago and, in one case, around 60 years ago, exacerbates the problem of identifying possible evidence even if Mr Forde was available.
Fourth, Mr Forde is not available to give evidence or provide instructions during any trial.
The unfairness to the defendant in this case is not solely caused by Mr Forde’s death. The abuse described in this case often took place in the absence of eyewitnesses. There is also no documentary evidence identified in support of the plaintiffs’ case. In those circumstances, an investigation of the physical environment can be important. It may be that the physical environment either confirms the descriptions given by witnesses or is at odds with that description or makes alleged events inherently unlikely. In this case, each location of the abuse no longer exists and so the opportunity for the defendant to undertake those investigations has been lost.
The death of the plaintiffs’ mother, who would have been an important witness, is also significant. She was told of the abuse by the plaintiffs and their sister in the early 1980s. She is said to have warned Ms Fury and Ms McCarthy about Mr Forde. Her death means that she is unavailable to give that evidence directly or to be challenged on that evidence.
The fact that the plaintiffs’ case is said to be strong cannot be determinative of whether a trial of the plaintiffs’ case would be manifestly unfair. The defendant’s case is effectively limited to challenging the plaintiffs’ witnesses’ evidence without the benefit of investigation of the surrounding circumstances because of the lapse of time since the alleged abuse, the destruction of the houses at which the abuse occurred and the death of the alleged perpetrator and other witnesses.
The passage of time has affected the case in other ways, too. Investigation of matters relating to causation and quantum, including how the plaintiffs’ PTSD commenced and developed, has been made considerably more difficult by the passage of time.
The changes to the Limitation of Actions Act to remove the time limit for commencing proceedings for historical sexual abuse reflect the public interest in such claims being brought. Those amendments, however, do not deny the Court from granting a permanent stay in exceptional circumstances. This is because of the public interest in ensuring the proper administration of justice and the fairness in any trial that is conducted.
Conclusion
For the reasons given above, I have formed the view that the defendant has established exceptional circumstances sufficient to grant a permanent stay of this proceeding. In all the circumstances of this case, to allow the plaintiffs’ case to proceed would be manifestly unfair to the defendant and would bring the administration of justice into disrepute among right-thinking people.
I will hear from the parties on the question of costs.
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