RC v The Salvation Army (Western Australia) Property Trust
[2024] HCATrans 33
[2024] HCATrans 033
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P7 of 2023
B e t w e e n -
RC
Applicant
and
THE SALVATION ARMY (WESTERN AUSTRALIA) PROPERTY TRUST
Respondent
GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 8 MAY 2024, AT 10.03 AM
(Continued from 7/5/24)
Copyright in the High Court of Australia
GAGELER CJ: Mr Cuerden.
MR CUERDEN: May it please the Court. I propose to begin by addressing the questions their Honours Justice Gordon and Justice Beech‑Jones asked me yesterday, which I took on notice.
GORDON J: Would you mind speaking up, please, I cannot quite hear you.
MR CUERDEN: I am sorry, your Honour. I propose to begin by addressing the questions that your Honour Justice Gordon and Justice Beech‑Jones asked yesterday. I then propose to make further observation with respect to the issue of the concept of a fair trial in this context – an issue that was the subject to some exchange yesterday – and then move to the identification of the relevant evidence, which is where I had got to yesterday afternoon.
The question from Justices Gordon and Beech‑Jones concerned our submissions regarding the distinction drawn by the Court of Appeal between notification of an allegation of sexual abuse and reasonably anticipated litigation, which, we say, was not a distinction drawn by the learned primary judge. The relevant passage in the Court of Appeal’s reasons is found in the core appeal book at page 95, paragraph 118, which falls to be considered in the context of, in particular, paragraphs 114 onwards.
In this passage, the Court of Appeal was considering and dealing with the submission that we advance before it on the assumption which was made for the purposes of this ground, that there had been no notification to the Salvation Army of the alleged abuse. So, these submissions were put on the – leaving to one side the alleged notifications to Major Watson during the period of the applicant’s residency at the home. So, that is the basis on which the Court of Appeal at paragraph 118 was dealing. What the court said in the fourth line is, having referred to the evidence that we advanced, based on the evidence given by the Salvation Army to the Royal Commission:
Whilst all that is to be accepted, in this case there was no letter before action or other threat of litigation along the lines alleged in the statement of claim which could have been investigated, with the benefit of legal advice, in the period prior to April 1971. There was no ‘reasonably anticipated litigation’ prior to April 1971.
The significance of April 1971 – strictly, March 1971 – was when the applicant’s claim originally became statute‑barred. So, the point of the process of reasoning of the court at this point is that in response to our submission to the effect that even had notification been made at any earlier point in time, it would not have been investigated – or, strictly, the respondent could not show it would have been investigated – the court drew a distinction between notification and reasonably anticipated litigation, and said that, in any event, there was not the latter. So, as we read ‑ ‑ ‑
GORDON J: Is your complaint that they took that into account?
MR CUERDEN: Yes.
GORDON J: Is that the point? What else attaches to it?
MR CUERDEN: It is that. It is the distinction the Court of Appeal has drawn between – the relevant counterfactual. The relevant counterfactual, in our submission, was that had a report or a complaint or a notification been made, it would not have been investigated. We couched it in those terms because that reflected the language of the learned primary judge’s finding at paragraph 141, to which I took the Court yesterday.
The Court of Appeal has, earlier in its reasons, said there was no burden on the respondent to prove that, but has gone on in any event to say, in effect, that is not the correct counterfactual – the correct counterfactual was what would the Salvation Army have done even during the original period when the claim was not statute‑barred, had there been reasonably anticipated litigation which, as the court’s reasons made clear, the court meant something more than notification, but some overt threat of ‑ ‑ ‑
STEWARD J: Do you accept that this ground was not raised at trial, which is the finding at 111?
MR CUERDEN: Yes, we have always accepted it was never articulated in the way in which it was in the Court of Appeal.
GAGELER CJ: Mr Cuerden, what is the relevance of the now inapplicable limitation period? What is the relevance for present purposes of focusing on what happened before or after that date in 1971?
MR CUERDEN: It is only relevant because the Court of Appeal raised it, in my submission, but it was not an issue raised by – it was not part of the learned primary judge’s finding. The primary judge’s finding was, had the respondent been notified prior to Lieutenant Swift’s death, the situation would have been different. The Court of Appeal has said, in effect, the relevant counterfactual is not notification but reasonably anticipated litigation.
GAGELER CJ: But as at a now irrelevant date.
MR CUERDEN: Well, the Court of Appeal has then applied that counterfactual to the whole of the period, but the Court of Appeal has said there is a difference – if one is asking whether there was reasonably anticipated litigation, there is potentially a difference before and after March 1971, because in Western Australia, unlike many other places in the Commonwealth, prior to 2005 there was no capacity to obtain an extension of the limitation period. So, in March 1971, the claims became absolutely statute‑barred with no possibility of an extension, which is why the Court of Appeal drew that distinction. That is, after that time, whatever it knew, there could never have been reasonably anticipated litigation until section 6A was introduced.
GLEESON J: But these distinctions do not seem to go anywhere, do they, under the majority reasons in GLJ?
MR CUERDEN: No, I accept that.
GAGELER CJ: So, what was the provision of the Limitation Act that produced that absolute bar? Is that mentioned somewhere?
MR CUERDEN: It is the absence of any power to extend time. We can give the Court a note of the relevant provisions of the 1935 Act, but it is the absolute – it is the six‑year limitation period for claims, causes of action in tort, coupled with the absence of any power to extend ‑ ‑ ‑
GAGELER CJ: Perhaps you might just mention the sections later in your submissions.
MR CUERDEN: Yes, we will provide those.
EDELMAN J: Has to be read with the extension of the minority for a minor – to reach the age of 18.
MR CUERDEN: Yes. The cause of – the limitation period did not start to run against a minor until they reached the age of majority, yes. There were similar provisions for persons under other disabilities, but it is the absence of a power to extend time.
JAGOT J: It could be relevant when the limitation period has, in force, expired on the basis – for example, on my calculations, Major Watson died within the limitation period. I am not saying that that is determinative in this case. It shows how haphazard the date of death of someone is – as in, everybody relevant, apart from the claimant, might die within a limitation period, therefore, you cannot talk to them or conference them, and yet you are within the limitation period. Nobody would suggest that is unfair.
MR CUERDEN: Indeed. Major Watson died in 1968.
JAGOT J: That is right.
MR CUERDEN: So, three years before the limitation period expired. The Court of Appeal did accept later, in the context of ground 3, our submission that Major Watson’s death, in and of itself – to use the court’s words – would be “most unlikely” to have resulted in a stay. That is, in my respectful submission, a considerable understatement. There could, in my submission, never have been a stay between 1968 and 1971 simply on the basis of Major Watson’s death, but the Court of Appeal said that it needed to consider Major Watson’s death as part of the whole of the circumstances now pertaining.
BEECH-JONES J: Mr Cuerden, just so I understand it, ground 2 is the point I think you are running in this Court. That is, you need to consider whether there would have been or whether it was demonstrated there would not have been any steps taken, had they been notified of the allegation.
MR CUERDEN: Correct.
BEECH-JONES J: As I understand the Court of Appeal, it said, one, this point was not raised before the primary judge; two, there is no such obligation; and three, the relevant counterfactual is whether litigation was reasonably anticipated. Is that right?
MR CUERDEN: Correct, yes.
BEECH-JONES J: But their Honours did not accept the underlying proposition that it would not have been investigated, did they?
MR CUERDEN: No, the closest they got was the acceptance in the first sentence of the first five lines of paragraph 118. That is the closest they got.
BEECH-JONES J: All right. I understand.
GORDON J: Just so I am clear – I know we are going back over this. Your proposition is that in the facts of this case, you rely on the first sentence of 118 as a factor in the evaluative exercise as a grant of the stay, as a, in effect, countermeasure to the fact that there are no documents?
MR CUERDEN: We rely on the first part of 118, but we also rely on the evidence to which I propose to take the Court shortly, which was the evidence that came from the respondent that demonstrates the fact. And so, we accept that we do not have a finding of the Court of Appeal in the terms that we need, because, although the proposition was advanced before the Court of Appeal, the Court of Appeal did not make a finding on the basis that the court did not need to, because of the reasons identified by his Honour Justice Beech‑Jones – there was no onus – and it adopted a different counterfactual.
What we say is that the evidence was uncontroversial. That is, the evidence in the statements given by Commissioner Tidd and Mr Brewin to the Royal Commission, which the respondent put on affidavit before the learned primary judge. Commissioner Tidd’s evidence took the form both of statements which could be read on their own, but also the express, unqualified adoption and acceptance of the conclusions reached in a report by Mr Walker, which we put into evidence, to which I am going to take the Court shortly.
We say this is a Lee v Lee situation. There are no credit‑based findings. There was no cross-examination of any of the witnesses. The proper finding is apparent from the uncontradicted evidence of the respondent itself.
GAGELER CJ: Mr Cuerden, your original estimate of oral argument was 1.5 hours, I think. How are we going with that?
MR CUERDEN: I am on the downward run, your Honour.
GAGELER CJ: Very good.
MR CUERDEN: So, that is what I wish to say about the questions from the Bench yesterday. There is an additional observation I wanted to make to add to what I said yesterday regarding the concept of a fair trial in this context, and there was exchange between the Bench and myself regarding the nature of the cross‑examination that could be conducted in a case such as this, the nature of submissions that could be made, and the significance of the ability to make submissions.
The point I want to make is this, that the cross‑examination and the submissions that are made are not separate parts of the trial to be compartmentalised. One, of course, cross‑examines to lay the factual foundation for the submission that one intends to make in closing address. The submission flows from the principles and techniques that have been mentioned more than once already, but the submission that needs to be advanced by the respondent in a case such as this to the trial judge is not to invite the trial judge to make a finding that the alleged abuse did not occur, it is to make a submission that the trial judge cannot be, or should not be, persuaded to the requisite level of satisfaction having regard to the Jones v Dunkel – the reference in Jones v Dunkel to the need for actual persuasion, the Briginshaw principle, all of the principles that have been canvassed.
That is the submission that is to be advanced by the respondent in a case such as this; that is the context in which the cross‑examination takes place. So, the absence of positive instructions from the alleged perpetrator that the abuse did not happen is neither here nor there because the submission that is capable of being advanced in the context of having a fair trial is the trial judge ought not be persuaded to the requisite standard that the abuse occurred. That is the issue to which the cross‑examination is to be directed, and that is more than sufficient, in our submission, for a fair trial.
Might I move then briefly to the evidence to which I was going to go yesterday, and I might just point it out in relatively summary ‑ ‑ ‑
EDELMAN J: Just very quickly before you do, is there any case where those submissions could not be made – any case at all? So, even a case of incapacity with – an amicus curiae could be appointed or a next friend could be appointed to make those submissions, is there any case where the submissions could not be made?
MR CUERDEN: It is hard to conceive of one, and at the risk of tiresome repetition I emphasise that Moubarak, in our submission, was about a different issue, the capacity which itself deprived the party of the ability to participate.
EDELMAN J: Yes, but your point about those type of submissions, they could still have been made even in Moubarak.
MR CUERDEN: Yes, yes. Perhaps before I deal with the evidence in that context, can I deal with a point that I was going to come to a bit later, which is, in Mourabak, if I can invite the Court to take up Mourabak, there is a reference starting at paragraph 93.
JAGOT J: Can you please give the page number?
MR CUERDEN: That is page 316 of the part D book of materials, page 238 of the New South Wales Law Reports. From 93 to 95, his Honour the President, as he then was, referred to the decision of the Full Federal Court in R v Davis, which was a criminal case in which a medical practitioner was charged with three counts of assault – assaults of a sexual nature – against female patients.
A stay was granted on the basis that there has been a long passage of time between the alleged events and the bringing of the criminal proceedings. Shortly prior to the bringing of the proceedings, the medical practitioner’s secretary – in circumstances in which there was no knowledge, no notice of the potential proceedings, and so forth – destroyed all of his medical records that concerned, amongst other things, all but one of the complainants in question, and the court granted a permanent stay.
It is perhaps not necessary to reach a view as to whether that case, if it was an analogous civil claim, might be the subject of a stay, but the point in the case was that the records, for one thing, were known to exist – it was a known case of destruction of records – and it was a particular type of sexual assault where the issue was not an allegation of conduct that, if true, was undoubtedly a sexual assault. It was a far more nuanced complaint, that in the course of carrying out intimate examinations, the medical practitioner had engaged inappropriately.
In the first category, the records would, in my submission, be almost certainly not the basis for a stay, because there would be nothing in the records that would go to the question of whether some obviously inappropriate conduct had occurred, but because of the nature of the allegations, there needed to be a close analysis of the symptoms with which the patient presented, the potential diagnosis, and whether, and if so, what type of intimate examination might have been appropriate.
That might be the sort of case where one is getting closer to the grant of a stay in civil proceedings, because of the known existence and loss of medical records. The defence that a medical practitioner might wish to run would, quite properly, not be simply, the court should not be satisfied on questions of cogency because, of course, the patients themselves would not know, necessarily, what sort of examination was properly called for, and so forth; where the medical records were integral and fundamental – essential – to knowing what sort of examination, if any, was called for, and therefore assessing the practitioner’s conduct.
So, that is a situation that is factually very different from the present, of course, amongst other reasons, because in this case not only is there no evidence that documents actually existed, but in fact the evidence of Mr Geary, repeating Mr Brewin’s affidavit – Mr Brewin’s statement to the Royal Commission, was that the Salvation Army does not know one way or the other whether it ever had records. But that might be a case that gets closer to the issue.
Perhaps, another example is the Trinity Grammar Case, which turned on the question of vicarious liability. A very different vicarious liability case to the present, because in Trinity Grammar the issue was that the teacher who was the alleged perpetrator had – all of the alleged abuse had occurred off school premises, including at holiday camps which the teacher and another teacher had themselves organised in some sort of personal capacity, and the question was whether they were arranged with the school’s imprimatur. So, there was a genuine issue about vicarious liability. The court said the one person who actually knows what the school’s involvement in these off‑campus activities was, was the master of the preparatory school, who had died.
Whether the decision is right or wrong, in that case the Court of Appeal granted a stay because that issue was so crucial to understanding the issue of vicarious liability. Again, in this case, although vicarious liability has had something of a resurrection in the submissions in this Court – or it is given an emphasis in this Court, it never died – it has been given an emphasis in this Court that it did not previously seem to have. This is a case where there is, in our submission, no real suggestion of prejudice with respect to the issue of vicarious liability, for reasons which I will address. They may be examples of cases, in answer to Justice Edelman’s question, that might get closer, if they do not cross the line.
With respect to the evidence, can I start with Mr Walker’s report, which the Court will find in the applicant’s book of further materials volume 1 ‑ ‑ ‑
GAGELER CJ: What are you getting out of this evidence? On your case, you do not need to show on the balance of probabilities that the respondent would not have investigated.
MR CUERDEN: Correct.
GAGELER CJ: Your point is that it is not shown on the balance of probabilities that the respondent would have investigated.
MR CUERDEN: Correct.
GAGELER CJ: All right. Well, you go ahead, but we do not to dwell on the evidence, I think.
MR CUERDEN: No, could I, perhaps, deal with it in a, really, more of a pinpointing identification of the pages. The Court will find Mr Walker’s report commencing at page 440 of volume 1 of the applicant’s book. Mr Walker was a retired police officer, he carried out this investigation with the assistance of a major law firm. At page 446, one finds the executive summary of his findings, and it is paragraphs (a) to (e) upon which we rely, but in particular subparagraph (c). I will not take the Court through it, but starting at page 453 through to 466, one will then find the detailed findings that are encapsulated in the executive summary.
BEECH-JONES J: Sorry, what pages were those? Page 453?
MR CUERDEN: Sorry.
GORDON J: Can you search for – you said 453 to 466, I think.
MR CUERDEN: Sorry, 453 to 466, thank you.
STEWARD J: Can I ask, how is this material received below? Because this is not evidence, this is findings by an external actor.
MR CUERDEN: The relevance is not the report in itself but the fact that Commissioner Tidd unreservedly accepted ‑ ‑ ‑
STEWARD J: He came from Canada in 2013, so while his acceptance is not evidence ‑ ‑ ‑
MR CUERDEN: He, in my submission, he is the top of the chain.
STEWARD J: He is, but how was it received into evidence?
MR CUERDEN: How was it received?
STEWARD J: Yes, no objection taken?
MR CUERDEN: No, Commissioner Tidd’s statement was put on affidavit by the respondent, so it was their evidence.
STEWARD J: Yes, I see.
MR CUERDEN: Walker’s report, we put in without objection. Yes, that is Walker’s report. If one then turns back to page 78 of this book, one finds Commissioner Tidd’s statement starting page 82, paragraph 7, Commissioner Tidd said he spoke for the whole of the TSAS, which was the Southern Territory of the Salvation Army which includes, amongst other States, Western Australia:
when I say that TSAS acknowledges, and deeply regrets –
the matters referred to in that paragraph. If one turns forward to page 99, under the heading – paragraph 98, Commissioner Tidd begins the discussion about steps taken and reference to Mr Walker’s report. Over the page, at 102, he agrees entirely with the conclusion in Mr Walker’s report on that matter.
GORDON J: What is that matter?
MR CUERDEN: That is the failure to investigate, so that is back at ‑ ‑ ‑
GORDON J: How do we know that that is that matter?
MR CUERDEN: Sorry, back at paragraph 100 – I beg your pardon, that is the lack of formal procedure. I beg your pardon.
GORDON J: No, no, at the top of page 100, the second last sentence is the one you want, I think.
MR CUERDEN: I beg your pardon, yes. I was right the first time.
GORDON J: Sorry, I just wanted to make the connection. I understand, thank you.
MR CUERDEN: No, thank you. Then, if one turns forward to page 102, Commissioner Tidd commences reference to Mr Walker’s report; investigation at paragraph 119; 120 is the terms of reference; 122 is a recitation of the executive findings to which I took the Court a short time ago; 126 through to 128 ‑ ‑ ‑
GLEESON J: Are these paragraphs?
MR CUERDEN: Paragraphs 126 through to 128.
GLEESON J: Paragraphs or pages?
MR CUERDEN: Paragraphs, I beg your pardon, your Honour, I am sorry. And at 128:
On behalf of TSAS, I unreservedly accept Mr Walker’s findings and conclusions.
et cetera.
GORDON J: Again, what are they relating to? So, at the moment we have dealt with, at 102, the finding about no investigation. What is this now relating to?
MR CUERDEN: That is all of the findings set out at 122, which is the recitation of the executive summary, yes.
GORDON J: Executive summary, thank you.
MR CUERDEN: There is a wholesale acceptance of Mr Walker’s conclusions. That is Commissioner Tidd’s statement, and then Mr Brewin’s statement is of lesser relevance. It forms the basis for the answer I gave to a question from his Honour Justice Steward yesterday about covering the whole of the period, including the period after Lieutenant Swift – between the introduction of the scheme in 1994 and 1997 up until Lieutenant Swift’s death in 2006. It is an agreed proposition from elsewhere that when he retired in 1989, Lieutenant Swift was suffering from Alzheimer’s.
But Mr Brewin’s statement from page 171, paragraphs 90 to 95, deal with the nature of an investigation that was done under the 1994 or 1997 scheme. Brewin puts it at 1997, and he makes the point that where an officer is unwell, he might not be given permission by the respondent to contact the officer as part of any investigation. We say the tenor of 90 through 95 is that investigations which on the evidence related to only where there was a claim made, not merely a notification, in our words, were relatively brief and not extensive. He makes the point, at the top of page 172, paragraph 92, that in his experience:
officers almost always deny any allegations of abuse.
GAGELER CJ: Do you read that as saying, and never sexual abuse?
MR CUERDEN: Yes. I read the reference to abuse as being a reference to sexual abuse. It may extend to abuse of other kinds, but this report is in the context of sexual abuse, yes. Those are the passages, or the parts of those statements, on which we rely. If one then – I really have two more propositions to advance. The first is if one considers the evidence said to have been lost in this case, it really, ultimately, whittles down to, if not nothing, very little. We identify in our written submissions, at paragraph 66, the four categories of evidence which the Court of Appeal identified and found to be significant based on the finding of the learned primary judge. As we read our learned friend’s submissions, we do not apprehend there to be any dispute about this identification.
There are four categories. The first is Lieutenant Swift’s death, and I have dealt with that at some length, and we say the significance of that needs to be considered in the context of the matters that we have advanced. The second is Major Watson’s death in 1968, which is dealt with in the written submissions and briefly this morning. The third, then, is the issue of witnesses, and the way the Court of Appeal put it was:
the respondent had been denied the opportunity to make meaningful inquiries into what ‘if anything’ potential witnesses ‘might’ have been able to contribute –
It is, with respect, speculation built upon speculation. I invite the Court to contrast that sort of language and that sort of analysis with, for example, R v Davis where there were known records of central relevance which were destroyed. Then, the fourth is:
the fact that the respondent was unable to investigate ‘whether’ there previously existed relevant documentary records.
Again, it is, with respect, nowhere near a finding that there are records, or there were records, that have been lost. I mentioned earlier, I would refer to Mr Geary’s evidence on the point which stands in the way of any suggestion that there had in fact been documents lost. One sees that in Mr Geary’s affidavit in the applicant’s book of further materials, volume 1, on page 46, at paragraph 62.
BEECH-JONES J: Are you challenging that finding on appeal?
MR CUERDEN: No, we embrace the finding.
BEECH-JONES J: That the respondent is unable to investigate whether there previously existed relevant documents.
MR CUERDEN: Yes, we accept the finding.
STEWARD J: What paragraph is that, I am sorry?
MR CUERDEN: On page 46 of the applicant’s book, paragraph 62. Mr Geary quotes from Mr Brewin’s statement to the Royal Commission, at paragraph 68 of the statement:
In my experience, [the former Southern Territory] holds incomplete records relating to the operation of their homes during the period . . . 1940 to 1980. We are unaware in many cases whether documents ever existed or if they were subsequently lost or destroyed.
BEECH-JONES J: Mr Cuerden, just coming back to this case – just sitting there now – what material did the respondent have to be able to form a view as to how it would approach the case?
MR CUERDEN: The issues in the case are, broadly, did the abuse occur – did the alleged abuse occur; was there an absence of systems and processes in place that went to the allegation of breach of duty; was there a notification sent to Major Watson which formed part of the breach of duty, because the alleged notification – or the first of the two alleged notifications – occurred fairly early in the course of the abuse; and the fourth is vicarious liability.
BEECH-JONES J: Just on the first one, whether the abuse occurred.
MR CUERDEN: Whether the abuse occurred – they had to be agnostic, in my submission. It is the testing, the probing of the type that I identified yesterday, pointing to inconsistencies, because there are inconsistencies in the three either written records or a record that has been reduced to writing of the alleged abuse.
BEECH-JONES J: Do you accept that that differentiates this case from the facts in GLJ? There is a series of material listed in the majority’s judgment that was said to allow the respondent in that case to, as it were, form a view about the case it was going to run and then do so.
MR CUERDEN: I would say every case, of course, is factually different. But in GLJ the material still required the respondent organisation, or the defendant organisation, to join the dots and draw inferences. It was not given to them on a platter, it was – and I might say, it is part of the forensic process. The cross‑examiner always looks at the surrounding facts, joins the dots, forms case theories, cross‑examines on that basis. So, yes, the facts are different, but in terms of what the defendant in GLJ actually knew – actually knew, as opposed to what they might be able to infer – it is not significantly different. One similarity between the two is the existence of propensity evidence.
BEECH‑JONES J: Good cross‑examiners, I accept, are flexible. They start with a basic case conception, so it is not a question of just asking questions and hoping something comes up – sometimes it is, but they basically have an idea of what their case is. The defendants have to know what it is long before they walk in and start cross‑examining. Yes, they may have to draw conclusions of their own about material, but in here, what have they got to do that with?
MR CUERDEN: For a start, the three versions – which do have inconsistencies ‑ ‑ ‑
BEECH‑JONES J: That the applicant gave.
MR CUERDEN: ‑ ‑ ‑ that the applicant has made. There is knowledge of the layout – there is the specificity with which the applicant has deposed to the relevant events. Might I just say in that respect, the learned primary judge rejected a submission by the respondent that the allegations were too vague or too uncertain to enable it to properly respond. The learned primary judge found expressly the allegations were quite specific. So, the applicant has nailed his colours to the mast, as it were, as to a particular version of events. He has an affidavit. The respondent is not boxing at shadows, it knows the case that it is required to meet. There are inconsistencies. It has the evidence of the layout of the home. The applicant is quite specific as to whereabouts within the home the allegations of the alleged abuse occurred, in a particular dormitory and in a recreation hall.
In GLJ, the defendant had some knowledge, in particular, about the alleged offender’s attitude to young men as opposed to his attitude towards females, and, of course, the alleged abuse in GLJ was against a woman. In my submission, the question is: was the respondent in a position to cross‑examine, to lay the foundation for a submission of the type that I have already identified? In my submission, it was.
The final point I wish to make – and, sorry, I should also say with respect to the issues of the existence of a duty of care and systems and so forth, it is a known fact that there are no documents that would be of material assistance because of the acknowledgment – or admission, if one likes – that Commissioner Tidd made to the Royal Commission by virtue of his adoption of the Walker report that the respondent organisation never had requisite policies – never had relevant policies and so forth.
GORDON J: I mean, that is your point of distinction, is it not, I think, if you sort of cut through the morass of facts. In GLJ, there was a factual and documentary trail set out by the majority judgment which was available and which would have, on one view, led them to inquire, and they did not.
MR CUERDEN: Yes.
GORDON J: Here, you say, well, that is not this case; this case is a case where we know from the evidence that has been put before by the respondent that there is at least a possibility that, on the balance of probabilities, they would not have made inquiries even if a complaint had been made, and therefore one looks at the unfairness in a different way, or the potential unfairness in a different way.
MR CUERDEN: Precisely, precisely. I mean, that is our ground 1. Our ground 3 is consideration of all of the evidence, but insofar as Lieutenant Swift’s death is part of the jigsaw, we rely on the analysis that underlies ground 1 as well.
The final point I wish to deal with is the suggested issue of vicarious liability. I made the point yesterday that one does not see in Mr Geary’s affidavit any complaint about an inability to deal with the case of vicarious liability. There are three other paragraphs of Mr Geary’s affidavit which make clear that it is not a genuine issue. I say “genuine” in the sense it is not an issue that would get close to being a source of prejudice.
The first is at the applicant’s book of further materials at page 40. At paragraph 49, Mr Geary, by reference back to Commissioner Tidd’s statement, refers to the six categories of various roles and responsibilities within the boys’ homes, and it is subparagraph (d) which is of particular relevance:
other Officers of the Salvation Army, including young Officers who were at the beginning of their Officer‑ship and worked with the children –
Now, that category includes Lieutenant Swift.
STEWARD J: Is it established whether he was an employee or not?
MR CUERDEN: No, it is not. That is an issue. That is in issue, whether he was technically an employee. I do not understand ‑ ‑ ‑
STEWARD J: If there are no records, how are you going to be able to prove that?
MR CUERDEN: There are plenty of – the respondent has Lieutenant Swift’s personnel file, which includes, for example, an eligible termination payment form ‑ ‑ ‑
STEWARD J: You do not have to be an employee to get one of those.
MR CUERDEN: Exactly. It is an example.
STEWARD J: In any event, you say it is something you will be able to manage?
MR CUERDEN: I will put it this way: there is, of course, a live issue as to whether one needs to be an employee. The respondent asserts he was not an employee. We do not apprehend the respondent to assert that that issue is something which grounds the grant of a permanent stay. The issue about vicarious liability is not the employment status, it is the issue of whether the nature of his role gave rise to the relevant connection.
Subparagraph (d) is the category that includes Lieutenant Swift. Then, the second paragraph I want to refer to is paragraph 51 on page 41, quoting Commissioner Tidd:
I also understand that the manager had complete control of the home, however supervision and oversight of the children at the homes was usually performed by the officers and non‑officer staff, who were responsible for the day‑to‑day care of the children, such as night supervision, getting them up in the morning, getting them showered and fed and transported to school.
Can I just note the reference to showering there, because what one sees – I will not take the Court to it, but paragraph 105 of his reasons, where the learned primary judge recorded the submission advanced by the respondent to the effect that they did not know enough about the precise duties that Lieutenant Swift performed, the example that the learned primary judge recorded as being advanced before him was that they did not know whether, for example, Lieutenant Swift’s responsibilities included showering the boys, because one of the allegations of abuse is that he acted inappropriately – not involving any touching, but acted inappropriately in the context of the applicant showering. It is a curious example to have given, given paragraph 51 of Mr Geary’s affidavit, in my submission.
The third paragraph of Mr Geary’s affidavit is at page 48 of the book, and it is paragraph 70, which, to be fair, perhaps goes more to a control‑type issue, rather than the issue of the type that I have just been mentioning. Whilst your Honours have that book open, could I invite the Court to turn to page 279. This is a record of interview conducted by a Captain Darlow of Captain Swift, as he then was, and his wife on 6 August 1961. One will immediately appreciate that is contemporaneous with the alleged offending. In the third paragraph, in the second line, there is a reference to Lieutenant or Captain Swift’s role, duty, as being a boys’ officer.
EDELMAN J: In what sense is your claim of vicarious liability advanced? Is it advanced in the sense that the Willmot claim is advanced, which is really a claim of non‑delegable duty? Or is it advanced in the sense of a claim of liability based on attribution of the liability of someone else? Or is it advanced in the sense of, perhaps, ostensible authority, based on the actions of another party?
MR CUERDEN: It is the second of the three categories.
EDELMAN J: And you do not bring any claim in the first or the third category?
MR CUERDEN: There is a claim for a breach of duty, and it is pleaded as a non‑delegable duty. I am not sure this is a case where the characterisation of the duty as a non‑delegable one is really an issue, because it is not really an issue of a contractor being engaged or something of that type, in the sense that it does not matter whether it is a duty to take reasonable care or to ensure reasonable care is taken. It is the organisation’s response. Part of the duty case ‑ ‑ ‑
GORDON J: It might make a difference, which is the point I was raising in the case yesterday. It may affect the way in which you look at the cause of action and the way in which the stay is looked at. That is why the claims need to be dealt with, I think, separately.
MR CUERDEN: Yes. As we read the response – and I do not mean to avoid your Honour Justice Gordon’s question, but by reference to the respondent’s submissions, we apprehend the real battleground, the real alleged prejudice, to be with respect to two issues. One is whether the abuse occurred, and the second is the issue of vicarious liability.
EDELMAN J: Yes. But suppose for a moment that they are right on vicarious liability. What do you say about the fact that you have an alternative claim of non‑delegable duty? Do you accept that the vicarious liability, if they are right, wipes out the whole of your claim, or do you say that part of your claim could remain? These were the same questions that were being put in the Willmot Case.
MR CUERDEN: Conceptually part of the claim could remain.
GORDON J: Did you say could or could not?
MR CUERDEN: It could. Part of the claim could remain. It is not an issue that has ever been explored. I certainly cannot stand here and say that the stay was opposed on the basis that – the parties have always treated it as all or nothing, but conceptually, particular causes of action could remain. But the claim based on breach of duty, we say, obviously includes the period of abuse that took place after the alleged notifications, in particular, the first of the notifications to Major Watson, because there would be no issue that hat would be an attribution to the defendant organisation of knowledge. The issue there is the factual issue of the notification to Major Watson, otherwise the breach of duty case is based upon the absence of requisite systems, policies and so forth. The absence of those systems is not an issue because of the acknowledgements made to the Royal Commission that such systems just never existed.
So, as I mentioned yesterday, Mr Geary’s affidavit did not identify as an issue prejudice in the context of vicarious liability. That was really an issue that was then developed by way of submissions rather than evidence and, I think it is fair to say, advanced particularly by reference to the decision of the New South Wales Court of Appeal in Trinity Grammar, which I have mentioned earlier. It is factually a completely different case.
In this case, there is no issue as to what Lieutenant Swift’s role and, we say, responsibilities were, and with the limited exception of abuse that is alleged to have occurred in a van going to the Mills and Wares biscuit factory, all of the alleged abuse occurred on premises at the home, factually completely different from Trinity Grammar and the sorts of inquiries that the court in Trinity Grammar held were essential for the defendant to meet the case of vicarious liability just do not exist in this case.
May it please the Court.
GAGELER CJ: Thank you, Mr Cuerden. Mr Villa.
MR VILLA: Your Honours, could I begin by addressing three matters that emerge from my learned friend’s submissions this morning. I then want to return to some more general matters of principle and in particular regarding the decision of this Court in GLJ, and try to address some of the questions that various of your Honours asked of my learned friend yesterday and of the parties in the Willmot Case, because I anticipate those questions will be coming in this direction as well. I will then address some specific matters of principle in the way that they apply in this case. I am going to try and avoid at all costs descending into the weeds of the evidentiary material to the extent that I can.
Can I firstly begin by addressing the submission that my learned friend made by reference to paragraph 118 of the Court of Appeal’s judgment in this case. This is in relation to the distinction that seems to be drawn between reasonably anticipated litigation in the period prior to April 1971 and post‑April 1971. Your Honours, that needs to be understood in the context of some of what was advanced against us at first instance, and by that what I mean is this.
There was in the evidence – and it is referred to in Mr Geary’s affidavit – some notifications of misconduct by Lieutenant Swift that occurred in a period commencing in 2000. Now, that is in a period during which, on one view of the evidence – and ultimately as found and now not challenged – was a period prior to his death, but when he was dementing. And we had anticipated that there might have been a suggestion at the primary hearing that the fact that he was starting to dement may not have prevented him from being able to provide us with information, and our failure to at least inquire as to that capacity itself might be disqualifying conduct that would not enable us to rely upon that.
So, really what the Court of Appeal is addressing there is that the proposition that after 1971, and at least until the introduction of the new Limitation Act (WA) in November 2005, any notification to the respondent would have been irrelevant in the sense of requiring it to make inquiry that would enable it to meet a civil claim for damages, because a civil claim for damages was simply not available. What the Court of Appeal is really doing there is addressing, on the facts of this case, what the Court of Appeal in Trinity Grammar v Anderson was doing in relation to notifications or re‑agitation of a claim in that case at a time when the school had, understandably, thought that there was no further exposure to a claim for damages because of what had occurred in that case.
Your Honour Justice Steward enquired about the basis upon which the Walker report was received into evidence. Your Honour, it is true that no objection was taken to that report. The report was advanced at the trial, or at the hearing of the application before the primary judge, on the basis that that was evidence that would be available in any prospective trial to enable proof of, or at least as a step in proof of, the absence of systems and procedures at the relevant time in the Nedlands home, and therefore was directed towards the question of breach of duty.
What occurred – I do not think your Honours have been burdened with the transcript of the hearing before the primary judge, and I do not suggest your Honours should be, but what then occurred was a long exchange between the primary judge and Mr Hammond, who appeared for the applicant at first instance, as to the basis upon which Mr Walker’s report would be admissible to prove that fact at any prospective trial. It was not relied upon as evidence that was relevant to the question of whether or not a stay should be granted and was not relied upon for the purpose which it is now relied upon.
Obviously, had it been advanced on that basis, then objection could and would have properly been taken, which is an additional Suttor v Gundowda basis as to why your Honours will not entertain that ground in this application.
BEECH‑JONES J: Mr Villa, just to be clear, it was admitted without restriction, is that right?
MR VILLA: I think that is right, your Honour.
BEECH‑JONES J: Okay. But your point is the ground that is part of the ground that now emerges only emerged in the Court of Appeal?
MR VILLA: Yes.
BEECH‑JONES J: And if that ground had been raised at trial, then a different view might have been taken about the evidence?
MR VILLA: Yes. And we also rely on other steps that could have been taken to address what is said emerges from that evidence in Commissioner Tidd’s evidence, and we have put that ‑ ‑ ‑
GORDON J: That is what I am asking. How do you deal with Tidd’s adopting and acceptance of it?
MR VILLA: Your Honour, we have put in writing what we say about the qualified nature of what is in fact said by Mr Brewin ‑ ‑ ‑
GORDON J: No, I am sorry. We were taken to Tidd’s acceptance of the Walker report, both in terms of specifics and summary. So, the Walker report goes in without restriction. You then file an affidavit addressing it – is that the chronology?
MR VILLA: No, no, your Honour. What occurred is ‑ ‑ ‑
GORDON J: Or did you, on your application for the stay, put forward Tidd with the references to the Walker report in it?
MR VILLA: Your Honour, Commissioner Tidd’s statement to the Royal Commission was in annexure to Mr Geary’s affidavit.
GORDON J: Yes.
MR VILLA: It was put there as the source of information that Mr Geary deposed to in his affidavit as to the structure of the homes and the roles and responsibilities of the different categories of officers, et cetera. It was put in on that basis because what we were trying to achieve, which we ultimately did, was to have the plaintiff allow Mr Geary’s evidence to go in, notwithstanding the multiple levels of hearsay involved, without objection. So that, for example, we did not have to adduce evidence from all the individual people who had made the various individual inquiries as to the existence of records, location of witnesses, et cetera. All of the source material that provided the foundation for Mr Geary then attested to in the affidavit formed part of the annexures.
Now, one of the Suttor v Gundowda points that we make is, firstly, had this issue been raised, we would not have read – or at least would not have tendered Commissioner Tidd’s report, or would not have tendered the whole of it. We could have not read particular parts of Mr Geary’s affidavit, or we could have called additional evidence to explain in more detail what the nature of the inquiries Mr Walker made.
Your Honours, we pointed in writing that, notwithstanding what appears in – I think it is paragraph 2(c) of the executive summary, when you actually go to the report itself – and we have given your Honours the references in writing, so I do not wish to take your Honours to it now – it is clear that the executive summary is not a fair or accurate reflection of the entirety of what Mr Walker says. So, there is not a lot than can be made of Commissioner Tidd’s acceptance of it because, whatever Commissioner Tidd says is really just not cavilling with – and remember, this is in a particular Royal Commission context – the results of the report prepared by Mr Walker.
But when your Honours read Mr Walker’s report fairly, it is heavily qualified in a number of respects. Firstly, there was a limited number of inquiries that were made and, secondly, it is quite clear from other parts of the report that we have identified that there was an ad hoc system on some occasions of in fact making inquiries and confronting officers with allegations and taking steps accordingly. So, that is the sort of additional evidence that could have been adduced, had this issue been raised.
GAGELER CJ: What did you contend was the prejudice that flowed from the death of Lieutenant Swift before the primary judge?
MR VILLA: I am going to come to this in a bit more detail later but directly, your Honour, the prejudice is the inability to have confronted him with the allegations, and that is the finding made by the primary judge. That, of course, is the first point in time and so the most relevant point in time in order to address some of the issues that emerge in the New South Wales Court of Appeal decision, but obviously after that point ‑ ‑ ‑
GAGELER CJ: If we just hold that point for a moment, you say that it was not in issue before the primary judge whether that opportunity would have been taken up?
MR VILLA: No, your Honour, there was no suggestion from my learned friends that, had that opportunity been given, it would have been taken up.
BEECH-JONES J: It would not have been taken up?
MR VILLA: There is no suggestion that it would not have been taken up and, for reasons I will come to in due course, our position is that we do not have to establish that we would have taken it up. Now, just to complete my answer to your Honour the Chief Justice’s question, obviously as a temporal matter, if Lieutenant Swift is dead before we have the opportunity to confront him with newly emerged allegations, he is obviously dead at any time we are preparing for hearing and he is obviously still dead at a point in time in which he could have been a witness in any trial.
So, there really is no substance with respect to the point that my learned friend sought to make by reference to the primary judge’s – what was described as a carefully confined finding. It was no such thing. There was no distinction sough to be drawn before the primary judge between a failure to confront when the allegations are first made and his subsequent absence as someone who could be conferenced or provide information or appear at any prospective trial to give evidence.
GAGELER CJ: Mr Villa, that might be a convenient time for us to take our morning adjournment.
MR VILLA: I am sorry, your Honour, thank you.
GAGELER CJ: Thank you.
AT 11.14 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.30 AM:
MR VILLA: Your Honours, the third matter I wish to address emerging out of Mr Cuerden’s submissions this morning relates to the issue of vicarious liability. We accept, of course, that, as your Honour Justice Gordon has indicated, the question of the fairness of a trial or the necessary unfairness of a trial needs to be considered, having regard to the particular bases upon which the claim has been put.
In respect of the non‑delegable duty pleading, we did not, before the primary judge or the Court of Appeal, point to any particular prejudice in dealing with that aspect of the claim other than, of course, the misconduct, or the alleged misconduct, which would form the basis of the breach of that non‑delegable duty. That is primarily because, on the current authorities, no such claim is viable by the appellant on the basis of non‑delegable duty. Now, I appreciate that might change, but that is why it was not taken before the primary judge, and we do not rely upon any prejudice or inability to meet that part of the claim other than the alleged misconduct. So, can I put non‑delegable duty to one side.
Vicarious liability was a significant issue before the primary judge and occupied quite a considerable amount of time in oral submissions, primarily by reference to this Court’s decision in Prince Alfred College v ADC. Your Honours, the basis upon which the vicarious liability claim is advanced by the applicant can be seen – and I will just give your Honours the reference to it, I do not need to take your Honours to it – at page 22 of the applicant’s book of further materials, which is the request by the respondent as to the “facts, matters and circumstances upon which” it is alleged that the respondent was “vicariously liable” for the conduct of Lieutenant Swift. The answer that is given is in terms that your Honours will be familiar with from the passage in Prince Alfred College where the plurality talked about the appropriate approach in cases of this kind. So, that is the basis upon which it is put.
The material that my learned friend has taken your Honours to establishes two propositions, really. One is that Mr Geary was quite conscious of the need to investigate the precise roles and responsibilities of Lieutenant Swift, to which he was appointed by the respondent, and the second is that other than a vague reference to him being a boys’ officer and some very equivocal reference to officers and non‑officers having responsibility for showering, that is the highest that the currently available evidence gets. We say that does not come anywhere near being able to satisfy a finding of vicious liability, having regard to what is said in Prince Alfred College v ADC.
BEECH-JONES J: Mr Villa, when you are talking about vicarious liability, you are talking about the limb of in the course of employment.
MR VILLA: Yes. Yes, your Honour.
BEECH-JONES J: Right. There is a debate about whether he is an employee, is that right?
MR VILLA: There is. Your Honours do not have the defence – and we can make it available if it would assist your Honours – but the defence to the allegation of vicarious liability is put, primarily, on the basis that he – that is, Lieutenant Swift – was an ordained minister and not an employee. Your Honours, of course, are currently reserved on a decision that will, effectively, determine whether or not that is a sound basis for denying vicarious liability. The other one is, that was no part of his role or responsibility to engage in the conduct – or put, differently, his roles and responsibilities did not provide the occasion for the alleged misconduct, even if they may have provided the opportunity.
GAGELER CJ: It would be helpful for us to have a copy of the defence.
MR VILLA: Yes, your Honour. We can have that filed in the Registry.
GAGELER CJ: Thank you.
MR VILLA: Your Honour Justice Edelman asked my learned friend yesterday why would Moubarak necessarily be decided the same way after GLJ. Your Honours, the answer to that question, in our submission, is not easy to discern. On the one hand, at paragraph [65] in GLJ, the majority appears to endorse the outcome in Moubarak. However, at least on one reading of other passages in the majority reasons, it is difficult to understand how the approval of the outcome in Moubarak is consistent with some of the propositions that featured prominently in Mr Walker’s submissions in the Willmot Case yesterday and were repeated by Mr Cuerden in his submissions yesterday.
Your Honour Justice Steward will no doubt want to know whether we agree with the analysis of Justice Leeming in CM v The Trustees of theRoman Catholic Church in the Diocese of Armidale [2023] NSWCA 313. Again, your Honours, there is no simple answer to that question. Can I explain why. Do your Honours have a copy of CM?
GAGELER CJ: We do.
MR VILLA: I will come to it in a moment, I just wanted to make sure it was before the Court. At the outset, can I say that we do not cavil with the outcome in GLJ. The reasons, however, reveal two different strands of analysis that lead to that outcome.
GAGELER CJ: I am sorry, I think we had it in yesterday’s case. I am not sure all of us have it today.
MR VILLA: I am sorry. I think it was in the authorities yesterday. Your Honours, the first strand of analysis that leads to the outcome that a permanent stay was not warranted in GLJ is, in a sense, purely factual. It is apparent that, like Justice Campbell at first instance, the majority regarded the material that was available to the diocese to have been sufficient to enable the diocese to meet the plaintiff’s claim in a manner that would not be necessarily unfair. The second strand of the reasoning is to the effect that, as Justice Leeming describes at paragraph 75 in CM:
that the “new world” introduced by s 6A means that some forms of impoverishment of evidence – indeed, the most common forms . . . are not to be regarded as exceptional.
Your Honours, it may be that each of those strands of reasoning, independently of each other, is sufficient to explain the outcome in GLJ. There is obviously, we accept, towards the end of the judgment, a commingling of the two strands, but we do say that each of them independently would be sufficient to explain the outcome, and one consequence of that is it is not clear, with respect, what the dispositive reasoning that would constitute a ratio that we would need to seek leave to reopen in fact is, emerging from GLJ.
Your Honours, we do cavil with the interpretation of the second strand of the reasoning in the absolute form in which it is described by Justice Leeming, and which appears to be embraced by the applicant, and your Honours, if it is to be read in that absolute manner, then, in our submission ‑ ‑ ‑
BEECH‑JONES J: I am sorry, Mr Villa, I am lost. Which absolute manner?
MR VILLA: I am sorry. I will try and explain what I mean by the absolute manner, but the – what Justice Leeming says at paragraph 75 in CM, to the effect that the most common forms of impoverishment of evidence are not to be regarded as exceptional.
JAGOT J: But does GLJ say that? I mean, you seem to be cavilling with Justice Leeming’s attribution as to what GLJ says.
MR VILLA: Justice Leeming would be the last person that would allow me to suggest that what he says this case – that this Court said in GLJ is binding. I accept that, your Honours. We do say that, if that is how it is to be read, it is inconsistent with other parts of the reasoning in the majority in GLJ, and for that reason, in our submission, Justice Leeming’s proposition in that absolute form cannot be correct.
Can I return to Moubarak for a moment. The only factor identified by the majority in GLJ as justifying the grant of a stay in Moubarak was the dementia experienced by the perpetrator. Now, I will put to one side what distinction there might be drawn between having – I am sorry.
STEWARD J: Just before you get to Moubarak, I understand what you have said about paragraph 75. Do you say that paragraph 75 is also talking about the greater tolerance for impoverished evidence, which was the submission Mr Walker put yesterday?
MR VILLA: Yes, your Honour ‑ ‑ ‑
STEWARD J: Or is there a more nuanced alternative?
MR VILLA: Your Honour, ultimately I am going to be putting the proposition that what is said by the majority in GLJ in paragraph [43] and reflected in paragraph [50], which are really the two paragraphs that Mr Walker was emphasising, is wrong. Can I try and deal with the answer to your Honour’s question in due course?
STEWARD J: In that case, you come to it in your own order.
MR VILLA: Your Honour, we put to one side any distinction there might be between a perpetrator who is dementing and a perpetrator who is dead, for the reasons that your Honour Justice Edelman identified. In either case, there is someone else who is giving instructions to defend the case. The practical reality is that in both cases there is an inability for that perpetrator, or alleged perpetrator, to meaningfully participate in any way in the defence of the proceedings. Now, it is difficult ‑ ‑ ‑
JAGOT J: Do you see it as relevant that in Moubarak, that person is the actual defendant, not just a potential witness? Is that relevant?
MR VILLA: No, we do not, your Honour. I will try and explain why that is in due course. I should not put that absolutely – let me try and come to it when I explain what we say the true test is, ultimately. Now, your Honours ‑ ‑ ‑
GORDON J: Sorry to be so difficult, but could we have the true test now? I mean, what is your proposition that you would have us adopt? Just so that we understand what we are aiming ait.
MR VILLA: Your Honour, the proposition is ‑ ‑ ‑
GORDON J: Sorry to be difficult, I just think it would help us to understand where the ‑ ‑ ‑
MR VILLA: No, I am sorry, your Honour. I can do that. The proposition is that where any prospective trial will be necessarily unfair, a stay of proceedings must be ordered. That is clear, and we do not apprehend there to be any dispute between the reasons of the majority or the minority in GLJ as to that. The other proposition that we will ultimately put is that any trial that prior to the abolition of the limitation period would have been necessarily unfair so as to warrant the grant of a permanent stay is still necessarily unfair warranting the grant of a permanent stay even after the abolition of the limitation period.
Perhaps to directly answer your Honour Justice Steward’s question, we do not accept that there is any greater tolerance for impoverishment, imperfection, loss of evidence, and we do not accept that there is any different quality of unfairness relevant to – now, whether one describes that as content or however it might be described, there is no different quality of unfairness that distinguishes the position where there is a limitation period and where there is not a limitation period. Can I explain why that might be important in this case, in a way that is different to GLJ and Willmot.
In Western Australia, section 6A only applies to child sexual abuse; it does not apply to serious physical abuse as it does in different jurisdictions. There does seem to be something of an incongruity if conduct of a most egregious kind resulting in the same psychological, psychiatric sequalae for a plaintiff, in circumstances where there is the same loss of witnesses and absence of documents, et cetera, should be allowed to proceed in a case of sexual abuse but not in a case of serious physical abuse simply because the limitation period in one has been abolished and the limitation period in the other has not.
STEWARD J: So, in essence, their submission is that the standard of fairness remains what it was prior.
MR VILLA: Yes, your Honour, yes.
STEWARD J: But we have to apply it, though, to new and unique circumstances, namely cases that would never have run in the past but now may run.
MR VILLA: Yes.
STEWARD J: Yes, I understand.
MR VILLA: Yes, and so as Justice Leeming observes, the consequence for this area of discourse of the abolition of the limitation period is simply this: that there will be more cases where stays become appropriate.
GAGELER CJ: Mr Villa, can I just test your second proposition by thinking of the circumstance of the death of the perpetrator. If you go back to the olden days when it was age of majority plus six years, the death of the perpetrator within that limitation period would have provided no basis for a stay, would it?
MR VILLA: Your Honour, we do not accept that proposition, with respect.
GAGELER CJ: I see.
MR VILLA: And there are two reasons why we do not accept it. The first is that was the case in Batistatos. All of the impoverishment of evidence occurred within the 29‑year limitation period – I am sorry, that was a case which involved the ultimate bar, but as a matter of principle the proposition is still good – all of the impoverishment occurred prior to the expiry of the limitation period, and the finding of the Court in that case was that that impoverishment warranted the permanent stay.
The second reason why we do not, with respect, accept that proposition is this. We accept that cases involving an extension of time are dealing with a different context. However, there is a common thread to the extent that if a defendant can establish that they are unable to fairly defend the proceedings, that provides a basis for granting a permanent stay and also provides a basis for refusing the extension of time.
What this Court – or at least Justices Gummow and Toohey in Brisbane South v Taylor – held was that it was inappropriate, as the Queensland Court of Appeal had done in that case, to compare what the position would have been had the claim been brought – I think in that case it was six months before the expiry of the limitation period, and the position obtained at the time that proceedings were ultimately commenced when the application for an extension was made. So, in our submission, it is not relevant when various events occur that cause prejudice.
The question is whether, at the time of a prospective trial, obviously informed by such material as is available at the time of the application for a stay of proceedings, at that time a fair trial is possible. Part of one of our responses to my learned friend’s submissions is that one is not making some sort of causal inquiry as to what was the cause of the loss of the evidence or the loss of opportunity to talk to people. One is simply asking whether at the relevant point in time, which is at the end of a process, a prospective trial can be unfair. Now, there is one qualification to what I have just put, but it is probably better if I put that when I am responding to Mr Cuerden’s submission directly.
Your Honours, going back to Moubarak for a moment, it is difficult to see how the dementia of a perpetrator is not to be regarded as a not uncommon and not unexpected consequence of the effluxion of time. Yet, if the reading of GLJ described by Justice Leeming, and seemingly embraced by the applicant in this case, is correct – that is, that such events are no longer relevant – then, in our submission, there is an irreconcilable tension between that reading of GLJ and the endorsement by the majority in GLJ of the outcome in Moubarak.
Your Honours, can I briefly advance the submissions that we wish to make with respect to the consequence of the abolition of limitation period for applications for a permanent stay of proceedings.
BEECH-JONES J: Is this a challenge to the “new world” analysis in GLJ?
MR VILLA: Yes, your Honour.
BEECH-JONES J: Right.
MR VILLA: Can I qualify that, your Honour. There are different aspects of the “new world”. Can I identify them by references to paragraphs in GLJ. We accept what is said in paragraphs [41] and [42] of GLJ. That is, that the abolition of the limitation period now means that there is no requirement for a plaintiff to explain delay. They do not have to justify the effluxion of time. They bear no onus whatsoever. We do not apprehend that there is any dispute between the majority and the minority in GLJ as to those two paragraphs. Where we apprehend the departure occurs and the position that we cavil with is what appears at paragraph [43], which then feeds into other parts of the judgment and, in particular, paragraph [50].
Your Honours, in our submission, section 6A(1) – the provision that abolishes limitation periods says nothing obviously. It says nothing expressly, in our submission, neither, as a matter of application or construction, does it say anything about the principles to be applied in an application for a permanent stay. By that it means it says nothing about the content of relevant unfairness that might justify a stay and it says nothing about tolerating or accommodating or allowing for impoverishment or imperfection in evidence that is different to the situation that obtained before limitation period was abolished.
BEECH-JONES J: It does mean that there is no longer a legislative policy reflected in a limitation period as there was in Batistatos.
MR VILLA: Yes, we accept that your Honour.
BEECH-JONES J: Well, that is a change, is it not?
MR VILLA: Well, that is, but that is what is, with respect, bound up in what is in paragraphs [41] and [42], for the reasons that I will come to as a matter of the policy underlying the abolition.
GORDON J: Can I raise two matters? I do not mean to interrupt. The enactment of 6A and its equivalents did create a “new world” in this sense: it lifted the bar to enable actions for child sexual abuse claims to be brought which were otherwise not able to be brought because they were statute‑barred.
MR VILLA: Yes.
GORDON J: And you must accept, do you not, that the lifting of that bar would inevitably, as a matter of fact, give rise to claims being made and proceedings being brought for child sexual abuse which would involve greater delay in the passage of time between particular event or events and the commencement of the proceedings than had otherwise been seen.
MR VILLA: Unquestionably, your Honour.
GORDON J: And then the second consequence which I think must follow, is that the court would also see, as a matter of fact, effects on the trial process as a result of those delays, including impoverishment of evidence that it otherwise would not have seen.
MR VILLA: Yes, we accept all of that your Honour. I thought I had made it clear in the walk back from the answer I gave to Justice Beech‑Jones, we accept the “new world” to the extent that it is described in paragraphs [41] and [42].
GORDON J: No, this is more precise. I am actually putting a proposition to you for [41] and [42], except they are the facts of what happened. In other words, if one steps back from it, we have the fact of the impoverishment of evidence in respect of evidence, which in the past we have not yet seen, which has to be dealt with by the courts.
MR VILLA: Yes, I do not resile from that at all, your Honour, and in fact we ultimately embrace that because that was recognised by the Royal Commission, both in its interim report which led to the initial round of abolitions of limitation periods and in its final redress and civil litigation report. It acknowledged that, of course, as was anticipated, and as has in fact turned out to be the case, the abolition of the limitation period would mean that there would be many, many more cases being brought which would raise issues of impoverishment of evidence.
The Royal Commission’s response to that, ultimately, was to say – and we say this is reflected in the statute as enacted in New South Wales and in Western Australia – was to say we will make it clear that – or the legislatures should make it clear that the power of a court to grant a permanent stay where the continuation of the proceedings would have a “burdensome effect”, picking up the language of Batistatos, upon the defendant.
Yes, we acknowledge all of those inevitable consequences of the abolition of the limitation period, but they were recommended to be dealt with and were in fact dealt with in a particular way, and when – I mean, the majority in GLJ looked at, or at least extracted at paragraph [29] of the judgment, the relevant passages of the second reading speech which identified the mischief that was being addressed by abolishing the limitation period.
The first is the tried observation that all too frequently survivors of sexual abuse, and for all sorts of understandable reasons, are unable to disclose their abuse until long after the limitation period has expired, and that, of course, includes the long‑stop provision in what was section 30 of the Limitation Act (NSW). The second mischief is the inadequacy, or the unfairness, or both, of existing regimes that enable claims to be brought, notwithstanding claims to be pursued after the expiry of the primary limitation period.
Now that, of course, is a reference to extension provisions which would usually require a separate application which required the plaintiff to provide an explanation for the delay in which the onus was on the plaintiff and in which the plaintiff would commonly be cross‑examined, and cross‑examined at length, and in particular in relation to the abuse and the psychiatric consequences of it. Your Honours, that is all, that is, what is said in the second reading speech and extracted at paragraph [29] in GLJ, is all consistent with the Royal Commission report.
As I think I have said, it is clear that that identified mischief leading to the abolition of the limitation period justifies what is said at paragraphs [41] and [42], but the extension that appears at paragraph [43], in our submission, is not justified. It is not the case, in our submission, that the abolition of the limitation period would be rendered inutile if a defendant could rely upon the “common and expected” consequences of the passage of time:
to constitute the “exceptional circumstances” –
sufficient to warrant the grant of a stay. That is so for a number of reasons. The first is that the abolition of the limitation period still has the utility of avoiding the two categories of mischief that I have identified by reference to the second reading speech and to which the section was directly aimed when it was introduced into Parliament. So, it still has that utility.
The second is because it is not all cases in which the materialisation of the common and expected consequences of the effluxion of time will suffice to grant a permanent stay. This is amply demonstrated by GLJ itself, at least on Justice Campbell’s analysis, and if we are right about the sufficiency of the factual strand of reasoning, then that is a case where, notwithstanding the common and expected consequences of the effluxion of time, independently of a new world, a permanent stay was not warranted.
BEECH‑JONES J: So, Mr Villa, are you reading that as saying, if the common and expected effects of the effluxion of time are such that a defendant is left with nothing, then you do not get a stay? As opposed to saying, if the commonly expected effects of the effluxion of time do degrade the evidence, but they are left with sufficient evidence to be able to engage with a case?
MR VILLA: Your Honours, that is what we say is a rationale that explains the outcome in GLJ and that was the case before the abolition of the limitation period and remains the case now, unaltered as to the content of “unfairness”.
JAGOT J: Mr Villa, this seems to assume that “fairness”, “unfairness”, are sort of floating out there, free from any statutory context. I mean, many parties might consider all sorts of the provisions of the Evidence Act unfair, for example, because they do not let them get the evidence they want, or – but there they are, and nobody suggests that things are unfair as a result of all those legislative policy decisions that have been made in all provisions of Evidence Acts. I suppose Mr Walker made the point when he said if you are a plaintiff, you probably think the onus of proof is unfair, but that is how it is. Is this not just another legislative policy choice, that there will be no limitation period, which inevitably leads to the results that Justice Gordon has identified, and that that has to be recognised? And that is all – no more.
MR VILLA: Your Honour, I think it is the last step that we cavil with.
GORDON J: You do cavil with, or you do not?
MR VILLA: Yes, we do.
GORDON J: Okay.
MR VILLA: There is no doubt there is a legislative policy reflected in the abolition of the limitation period, and – repetition is always a bad form of advocacy, but that is the policy reflecting the Royal Commission report which is identified in the second reading speech and appears in paragraphs [41] and [42]. But this is not a question of construction of section 6A, it is a question of its application. So, in our submission, the context in which that is coming to be applied does not change the content or standard of fairness. It simply means that there will be more cases where the courts are called upon to address these undoubtedly difficult issues, but we ‑ ‑ ‑
GORDON J: Can I put two propositions to you. If you accept – as you do, I think – that what is fair has not changed before and after GLJ, that is, the concept of fairness, fair trial – the standard has not changed.
MR VILLA: Yes.
GORDON J: And if you accept, consistent with the propositions I have put before you, that rather than looking at the impoverishment of evidence as being exceptional but as a result of the facts I put to you, one looks at them and says, the loss of evidence is not exceptional because of the time delay, one can see it properly to be understood as both routine and expected, i.e., it is 50 years, one has not shifted the rules, one has just, in effect, changed the prism through which you look at it. Is there anything wrong with that?
MR VILLA: Yes, your Honour.
GORDON J: Why is that so?
MR VILLA: Because, your Honour, there is absolutely no reason reflected in the fact of the abolition of the limitation period that a trial which was unfair prior should suddenly become fair, simply because ‑ ‑ ‑
GORDON J: We are not asking that question at the moment. We are asking about the principle.
MR VILLA: But your Honour, the principle can only be stated at a very broad level of generality. It is a question of not what is the principle, but how is it to be applied in a particular case?
GLEESON J: Mr Villa, could I suggest the principle in this way? The principle is that trials should not be an abuse of process. The legislature, when it has a limitation period or an extension of time requirement, supports the courts to protect them from an abuse of process. When the legislature decides that it is not going to afford that support by, say, a six‑year, arbitrary deadline – which it might do for other reasons apart from protecting the courts from abuse of process, but also efficiency, or many other reasons – it leaves it to the courts to protect themselves, and the courts then have to apply the ordinary common law principles about what is an abuse of process.
MR VILLA: Your Honour, there is no doubt that at least at a practical level, one effect of the abolition of the limitation period is to transfer responsibility for the judgment as to what is fair not from a prima facie judgment by the legislature but to the individualised assessment by the courts. But what we say is there is no warrant simply from the fact of the abolition of the limitation period to change the approach, to apply the general principle in any different way, or – and I think this must be accepted – in a way which might have warranted a stay without the abolition of the limitation period but warrants a stay with the abolition.
It is just not – with respect, the concept of unfairness, the content of unfairness in any particular case, the quality of the evidence, the inevitable fact of impoverishment, is not something that section 6A is directed to other than to confirm, clearly, that the powers of the court that previously existed still exist to prevent the injustices that your Honour has spoken about.
GAGELER CJ: The basis for your stay in this case, one way or another, was the effect of the effluxion of time, correct?
MR VILLA: Your Honour, for reasons I will come to, I have a difficulty with might be a causal link described by the effect of the effluxion of time, but what we rely upon is the fact that, time having run, there is an absence of witnesses and documents. We do not point to any other factor that produces oppression other than the absence of an ability to have a fair trial.
Now, GLJ at paragraph [17] – and again, I do not apprehend there is any dispute between the majority and the minority in relation to this – seems to have the effect that the unfair trial category of stay cases is a subset of unfair and oppressive in the sense that in all cases where there could not be a fair trial, it is unfair and oppressive to have a defendant have to meet that claim.
GAGELER CJ: But your point is, you cannot have a fair trial now.
MR VILLA: Yes. We do not rely upon any other – there is nothing of the sort that there might have been in Connellan or in other cases where there is some kind of disqualifying conduct.
Your Honours, can I just complete what I wanted to say about GLJ, by saying that we respectfully adopt the analysis undertaken by Justice Steward at paragraphs [140] to [146] and the analysis by Justice Leeming in CM at paragraphs 70 to 73.
GORDON J: Are you leaving GLJ now?
MR VILLA: I am, your Honour.
GORDON J: Just so that I am clear, that is you challenge [43] and [50] – is that the way it is put?
MR VILLA: Your Honour, I am going to come and make some observations about other aspect of GLJ ‑ ‑ ‑
GORDON J: I understand – I thought you had finished.
MR VILLA: In the context of – it is really about the common law tools and some of the utility in a particular case – and that is probably best dealt with in context.
GORDON J: Thank you.
MR VILLA: Your Honours, we do not dispute, of course, that the common law tools that are described by the majority in GLJ are available to be used to attempt to alleviate elements of unfairness in any prospective trial. But, your Honours, in the context of any particular case, it is not sufficient, in our submission, to simply say that the plaintiff bears the onus of proof and, because of the serious nature of the conduct, he bears it to the Briginshaw standard in Western Australia – because there is no uniform Evidence Law – or to observe that a trial judge or a properly‑directed jury is entitled to reject uncontradicted evidence.
Those propositions, stated in the abstract, cannot be disputed, but what one needs to consider is how those common law tools might be deployed or available to meet the prejudice that is identified by the absence of witnesses and documents. Let us take, for example, the proposition that a trial judge or a properly‑directed jury is not required to accept uncontradicted evidence – or, to put it another way, is entitled to reject uncontradicted evidence. One needs to consider, in our submission, on what principled basis a trial judge or properly‑instructed jury could reject an apparently credible and coherent account given by a survivor of sexual abuse at any trial.
GORDON J: Do you mean in a hypothetical sense – a level of abstraction?
MR VILLA: I am going to try to put some meat on the bones, your Honour. There will of course be cases where there is sufficient material available to a defendant which emerges from some form of speculative cross‑examination which then enables a general attack to be made on the credibility or reliability of a plaintiff – and that is material not necessarily directed towards the abuse, but other accounts of other things that they have given in their lives subsequently, other matters in which you can legitimately say to a trial judge that, because of all difficulties with the evidence in relation to these other issues, your Honour should not accept the evidence given by the plaintiff when they give an account of the abuse itself.
But because we are dealing with practical justice, we are dealing with practical questions about what any prospective trial would look at, it not sufficient, unless there is some basis for thinking that there might be a reason why a submission could properly be advanced that the evidence should not be accepted – in the absence of that, the abstract notion that uncontradicted evidence can be rejected, in our submission, does not render fair what would otherwise be unfair.
BEECH-JONES J: All this is a bit of a debate in a vacuum, Mr Villa, because, true it is – I mean, uncontradicted directly, all that is saying is you can have evidence that is not directly contradicted, it can be rejected in a practical context, if there is something a defendant can point to that casts doubt upon it, you could reject that. I just do not know whether we are talking about your case or some theoretical case.
MR VILLA: Well, I would probably put it in the theoretical sense, but let me put it in this case.
GORDON J: I think I suggested it might have been hypothetical.
BEECH-JONES J: So, in your hypothetical case, you are talking about a case where a defendant has nothing. Is that what you are talking about?
MR VILLA: Yes.
BEECH-JONES J: Does GLJ suggest that a defendant who has nothing never gets a stay?
MR VILLA: No, I am not suggesting that, your Honour, but what I am trying to address is – perhaps let me meet Mr Cuerden’s proposition directly; this might make the point better. Your Honour, yes, there are inconsistencies between the accounts given by the plaintiff. That, in a sense, does not provide any salve to the absence of witnesses or documents because we know that courts now recognise that inconsistencies in accounts, omissions from accounts, the vagueness of details of accounts of sexual abuse are themselves in fact consequences of sexual abuse, and the courts accommodate, not favourably to a defendant, but favourably to a plaintiff when considering whether or not those inconsistencies, omissions, and vague details provide a sufficient basis for disbelieving the account.
Your Honour, in the absence of any other evidence of another kind that would enable a full assault on the plaintiff’s credibility or reliability, or other circumstantial evidence which could point to improbability of the account occurring – we do not have any of that in this case. Your Honour, the proposition that we can still cross-examine the plaintiff as to those inconsistencies does not render what would otherwise be unfair, fair.
JAGOT J: You seem to be suggesting that unless a defendant can win ‑ ‑ ‑
MR VILLA: I am sorry, your Honour?
JAGOT J: You seem to be suggesting – I must not be following, because it is not that – you seem to be saying a trial will be necessarily unfair unless the defendant can do something to ensure that it will ultimately succeed in a defence, but that is not how fairness is measured at all.
MR VILLA: I am sorry. If your Honour has taken that from the submission I have made, then that is my poor expression, I was not intending to convey the proposition that the question is whether we can succeed. But what is put against us is this absence of witnesses and documents does not matter, because you still have – well, one of the things that is put against us is that you still have the opportunity to cross-examine the plaintiff and put to him his inconsistent accounts.
The only proposition I am making is that that hardly seems, particularly given the recognition of inconsistencies as a consequence of sexual abuse, to be of particular utility in this particular case, because that is the only thing that the plaintiff or the applicant can point to as producing some meaningful participation that the respondent can have in any prospective trial.
GORDON J: There seem to be two issues merging. One is – we started off talking about the common law techniques.
MR VILLA: Yes.
GORDON J: Those common law techniques, at least on my reading of the authorities, have been taken into account in the past, before GLJ, that is, they are part of the framework in which one considers the application for the stay.
MR VILLA: Yes.
GORDON J: What is the complaint, then? I do not quite understand what the issue is in relation to the common law techniques. They have been there. They have been applied. They have been adopted. There is nothing new about them.
MR VILLA: That is right, your Honour.
GORDON J: So, how does that help you?
MR VILLA: Your Honour, the only proposition I wished to make was it is not sufficient to simply state that they exist at an abstract level. One needs to consider how those could ameliorate the prejudice that otherwise arises from the absence of documents and witnesses. And what is put in favour of the plaintiff is there are these inconsistencies in his statement that can be cross‑examined on and, in our submission, that does not sufficiently ameliorate the otherwise ‑ ‑ ‑
GORDON J: Because I do not read GLJ as suggesting more weight should be given to those common law techniques.
MR VILLA: I am not suggesting it does, your Honour.
GORDON J: Right.
STEWARD J: Can I ask you a question in this area, and that is, I think the proposition you are putting to us is that the inconsistencies still leave you “utterly in the dark”, to use Chief Justice Bell’s expression which was adopted by Justice Mitchelmore in GLJ. Mr Cuerden says, that is okay, because you can still run an onus case, you can be utterly in the dark and still have a fair trial, you can just say they have not discharged their onus. What is your answer to that proposition?
MR VILLA: Well, your Honour, it is partly the matter that Justice Beech‑Jones adverted to, and that is there is a big difference between being able to cross‑examine someone on the basis of information that is available, whether that be by way of instructions or by having conferenced someone who might be available for a witness or even having some completely inadmissible evidence, and doing it without any of that kind of material and simply pointing to minor inconsistencies in the account which, as we say, are common consequences of sexual abuse and could not of themselves provide a basis for rejecting what is otherwise a coherent, plausible account.
STEWARD J: So, is the proposition that in civil cases where one side is utterly in the dark – a defendant is utterly in the dark – they are so sufficiently degraded in their ability to present the case they might want to present that the trial must be unfair?
MR VILLA: Your Honour, it might depend on what the content of “utterly in the dark” is, because, as GLJ demonstrates ‑ ‑ ‑
STEWARD J: Perhaps used in the sense of Moubarak, where there is no way of knowing one way or the other whether what happened, happened.
MR VILLA: Yes. If that is the fact and there is no other evidence available, as was the case in Moubarak, then we say, stay is properly granted.
STEWARD J: And it is no answer in Moubarak to say, but you can still run an onus case?
MR VILLA: Correct.
STEWARD J: Okay.
MR VILLA: And partly because, as I have submitted earlier, unless there is a capacity to launch a general attack on credit, in our submission, there could be no principled basis upon which to not accept the account of a plaintiff in that circumstance.
GAGELER CJ: You still link that to the effluxion of time in some way, though, do you not? There are many cases, many categories of case, in which the tortfeasor or the principal protagonist who is said to have been at fault is no longer available. That does not prevent a fair trial, does it?
MR VILLA: That is true, your Honour, but there are, in those different types of cases – I mean, you would usually have, for example, a motor vehicle accident having occurred, you will often have contemporaneous medical records that will contain accounts of what happened and how the injury occurred, and so, even in the absence of the tortfeasor, you still frequently have objective material or contemporaneous hearsay material which bears upon what in fact occurred. In the sort of case that I think Justice Steward was positing, there has never been and never will be that sort of information, where there has been no prior notification.
Now, we accept, of course, as GLJ, on the reading that I have advanced on the first strand of the analysis, where there is other material that enables an attack on the credibility of the plaintiff to be launched – because of the gender of other complainants and because of the other material that was known about his sexual proclivities, which might point in either direction, depending on the particular case – but where there is simply nothing, which we say is our case, and distinguishes it from GLJ, then the absence of the perpetrator produces prejudice of a kind that does not enable a fair trial to be had, no matter how many common law tools might be deployed.
GAGELER CJ: And the ultimate label that you put upon the consequence of this prejudice is abuse of process? I think that is what you said we are ultimately saying, that the bringing of the proceeding by the alleged victim of the sexual abuse is an abuse of process in those circumstances.
MR VILLA: Your Honour, we do not say the bringing of it is an abuse of process, because the abolition of the limitation period tends against that characterisation. The way we put it is that, by reason of the impoverished evidentiary position we are in, we cannot have a fair trial and therefore, consistently with everybody in GLJ, consistently with Batistatos, consistently with Jago, the proceedings must be stayed. It is, in a sense, in our submission, unhelpful to try and add different labels to that, whether one calls it oppression, whether one calls it an abuse of process, if we establish the premise, it is clearly a case that should be stayed irrespective of the label that might be attached.
Your Honours, in respect of the supposed distinction between a domestic and an institutional context, we do not apprehend anything in the majority judgment to be suggesting that there is a bright line to be drawn between those two categories of cases that affect the way in which the inquiry should be approached. As we apprehend what the majority was saying in GLJ, it was simply the observation that in an institutional context, there are likely to be records that will not exist in a domestic context, but we do not apprehend anything in the majority in GLJ to be suggesting that if, in fact, there are no records in an institutional context – which is this case, in our submission – that the outcome should be any different, or that there should be some different approach. We do not, in our submission, suggest that there should be a distinction. We think that any distinction is really a factual one which is capable, obviously, of disproof in any particular case.
Your Honours, the submission made by Mr Cuerden that there is some significance to the finding of the primary judge that the loss to the respondent was an opportunity to confront Lieutenant Swift and not the opportunity to call him as a witness or to consult or communicate with him I have addressed previously in the first submission I made this morning, but in any event, the submission is factually incorrect. Can I just give your Honours the references.
At paragraph 142 of the primary judgment, the primary judge identifies the prejudice to the respondent by reference to the loss of witnesses. His Honour does say, by reference to the discussion which appears at section 6.2 of his judgment – your Honours, that begins at paragraph 50 – and the very first witness referred to in section 6.2 whose loss is said to occasion prejudice to the respondent is Lieutenant Swift. So, whatever other validity there might be to the submission made by Mr Cuerden, it does not survive scrutiny as a matter of factual finding by the primary judge.
Your Honours, can I next address Mr Cuerden’s submission to the effect that the absence of prior notification is irrelevant because the respondent would not have made any inquiry in any event. We set out in writing why we say that submission is wrong at a factual level and nothing that Mr Cuerden has said this morning improves the position advanced in the applicant’s written submissions, to which we have already responded. We have also set out in writing why we say the applicant is not entitled to take that point, having not been taken before the primary judge, and could have been addressed by a different forensic choice. Again, I do not wish to add anything to that.
The only thing I do wish to add is to respond to what appears in the applicant’s reply at paragraph 10. Your Honours, as is apparent from paragraph 8 in the primary judgment, both parties filed detailed written submissions some weeks before the hearing. In our submission, this was the occasion for the applicant to take the point, if it was thought to have any merit, particularly where the document that is now apparently relied upon was a different part of the document which is being deployed by Mr Geary in his evidence, and was being deployed for a completely unrelated purpose.
Apart from the question of whether they are entitled to take this point now, in our submission, the approach is wrong as a matter of principle. I said earlier – and this is coming back to, I think, part of an answer I was giving to your Honour the Chief Justice – what we say is that the question is whether the prospective trial at whatever time it will be held having regard to what we know about the information at the time of the application for a stay will be necessarily unfair. The use of phrases such as, what has the defendant lost, which now seems to form part of the vernacular in the area of discourse, is, in our submission, apt to mislead because it suggests that some form of causal inquiry is called for, or that there is some sort of comparative exercise between the quality of evidence at the time of the application and some earlier point in time. I have not taken your Honours to it, but I have made reference to what Justices Gummow and Toohey said in Brisbane South v Taylor about that comparative exercise.
GAGELER CJ: So, in Batistatos, which I understand you rely upon, it was said, I think, at paragraph 69, that:
attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time.
Is that the inquiry that you would have us engage in, or is it different?
MR VILLA: Your Honour, we cavil with the effect because it suggests a causal inquiry that we say is irrelevant. What we say the relevant inquiry is: can the defendant in any prospective trial meaningfully participate in a fair way?
BEECH-JONES J: So, on your analysis, if three years after this incident, Lieutenant Swift was already dead, all the relevant witnesses were already dead, there had been a fire that burned all your records, you were utterly in the dark, then you would get a stay.
MR VILLA: If proceedings were commenced in – at what point in time, your Honour?
BEECH-JONES J: Three years after the incident.
MR VILLA: Your Honour, what we say is, as a matter of principle, a stay would still be available, but it is, obviously, going to be much more difficult because it is more likely that there would be some other material that might bear upon other issues.
BEECH-JONES J: On the hypothesis I give to you, you have nothing.
MR VILLA: Yes, your Honour.
BEECH-JONES J: So, you get a stay?
MR VILLA: As a matter of principle. We say that explains why a stay was warranted in Batistatos, notwithstanding that proceedings had been commenced within the limitation period.
GLEESON J: Essentially, I think you are saying that because you say that, on those facts, there is no meaningful opportunity for the defendant to participate in the trial.
MR VILLA: Yes, your Honour.
BEECH‑JONES J: Regardless of how that situation has come about.
MR VILLA: Well, that is the qualification that I indicated I was going to dealt with in due course in answer to his Honour the Chief Justice’s question, which I will come to now. We say that to the extent that any causal inquiry might be called for, it is limited to questions of what might be described as disentitling conduct – although we do not adopt that terminology, but that is the terminology that is used in some of the other cases – or what Mr Walker more neutrally described yesterday as loss of evidence for which one party or another bears responsibility.
Now, there is a question that we have been debating amongst ourselves about how that kind of loss of evidence for which a party bears responsibility feeds into the analysis. Notwithstanding some indications in the New South Wales Court of Appeal to the contrary, it seems that as a result of GLJ it cannot be said that there is some sort of residual discretion that might be exercised, with the effect that notwithstanding the defendant faces an unfair trial, as a matter of discretion you would not grant a stay because that unfairness has been occasioned by the defendant’s own conduct.
The other way of analysing it – which seems preferable, given the analysis in GLJ about there being no discretion – is that it does not lie in the mouth of the defendant to claim unfairness where that loss of evidence is a result of their own – at least, advertent – conduct, and so is not relevant unfairness for the purposes of the grant of the stay. The same might be said in the opposite direction, where the party bearing responsibility is the plaintiff.
The reason why those are of a different character to the sort of inquiry that the plaintiffs advance is this: those questions arise in concrete circumstances at concrete points of time, and they do not call for the sort of speculative exercise which is called for by the plaintiff’s position, speculation as to what the content of any notification might have been, at what point in time are the contextual matters that may or may not have borne upon how a defendant might have responded.
GAGELER CJ: How do we apply that qualification in circumstances, which I understand to be the present, where there simply were no records?
MR VILLA: Well, your Honour, we say that nothing arises in this case, that ‑ ‑ ‑
GAGELER CJ: Is that just a neutral factor, the absence of documentary records? I mean, if they were to be kept, it would have been your client who would have been keeping them. Is that a factor that points one way or another, or is simply neutral?
MR VILLA: In this case it is, in our submission, neutral, although your Honour will see from Mr Geary’s affidavit that we went to some lengths to try and identify what documents might have once existed, and there is evidence in the material about central repositories of documents, I think in Adelaide, that were regrettably destroyed in a flood. So, there is that loss, but we put that evidence forward in order to negate any suggestion that some failure on the respondent’s part has led to the absence of documents.
Your Honours, while I am talking about loss of documents, can I just say something briefly. Because we say the inquiry involves no causal analysis, in our submission, it is not necessary for a defendant to prove that particular documents once existed that are now not available. That is not to say that if we could prove that, it would not be relevant, but it is not determinative because my learned friend took your Honours to – or referred to the decision of the Full Court of the Federal Court in Davis, which is discussed in Moubarak at paragraphs 93 to 94.
That is a case where it was known that documents once existed and, through no fault of anybody’s, no longer existed. But the absence of documents may be relevant in other ways. The absence of documents may be relevant because it deprives a defendant of one source of material that might have ameliorated the absence of a testimonial witness. For example, if there was a document that set out Lieutenant Swift’s roles and responsibilities, we could not rely, for example, on the death of his wife as resulting in relevant prejudice to the extent that she might have given evidence about what his roles and responsibilities at the home were.
So, the absence of documents is relevant in that negative way, and they also may be relevant in another negative way in that they may deprive a defendant of material of a documentary kind that might enable a meaningful cross-examination, including by reference to circumstantial matters that bears upon the plaintiff’s reliability or credibility. Now, those sorts of documents were available in GLJ. They were not available in Moubarak. They were not available in Connellan v Murphy, and they are not available here. In our submission, that leads inexorably to this case being one which, unlike GLJ, but like Moubarak and Connellan v Murphy, warrants the grant of a permanent stay.
Your Honours, those are the submissions we wish to make.
GAGELER CJ: Thank you. Do you have a reply, Mr Cuerden?
MR CUERDEN: Yes, I do. Thank you, your Honour. Might I give the Court the provisions of the Limitation Act 1935 (WA). The limitation period for a claim in tort was found in section 38(1)(c)(vi). Section 38A, which was introduced in 1984, provided for an extension only in the case of asbestos disease cases, so it was irrelevant to the present case. The provision that provides for the limitation period to extend six years beyond the plaintiff obtaining the age of majority was section 16.
In respect to the issue of whether we should have been permitted to run the point the subject of ground 1 in this Court, before the Court of Appeal. As to that, we essentially rely on the written submissions. The witness statement of Commissioner Tidd was put before the primary judge, referred to at paragraph 34 of Mr Geary’s affidavit. It is, with respect, fanciful to suggest that the respondent could or would have gone back and excised paragraphs of the statement.
This was, of course, not a case on pleadings. Any analogy or reference to the authorities to which our friends have referred are inapposite. On an application of this nature, the parties file their affidavit materials and then make submissions. Our basic proposition is that there was no prejudice in that context. It might have been different, had the affidavit evidence been filed by reference to previously identified and articulated propositions, but it was the reverse.
Ultimately, we say that it is an absence of evidence as to an essential matter relevant to the granting of a stay. That is a matter that is always at – it was a matter for the respondent to prove. There is a reference being made to the decision of this Court in Batistatos. It is not an authority that has been referred to in the parties’ submissions, so the Court does not have a copy of it available, but I just make the point that it was a radically different case to a case of the present type. I touched on those yesterday. It was also a case where the plaintiff’s account was – to the extent that he actually gave one, and was even able to give one – so vague and uncertain ‑ ‑ ‑
GAGELER CJ: This is a point you did make in chief.
MR CUERDEN: I am sorry, that was to repeat – I made that point yesterday. Can I make this point. Conscious the Court does not have the version of the case report before it, when one goes to the facts of the case, there were issues as to the plaintiff being affected by alcohol. That raised issues of contributory negligence, or possibly volenti on which, of course, the Road Authority bore the burden of proof. Otherwise, for the reasons I submitted yesterday, it is a radically different case.
My learned friend’s submissions as to the concept of practical justice was, in a sense, in my submission, that the use of the word “practical justice” was effectively a suggestion that in a practical sense, the principles that have been identified might not be applied in an orthodox and appropriate way. The starting point has to be, in my submission, that they will be applied in the appropriate way, and “practical justice” cannot be used as a euphemism for a suggestion that, notwithstanding those principles, the defendant will nevertheless not receive a fair trial.
My friend referred, with respect, correctly, to the limited weight which might be given to inconsistencies in statements for reasons that are well-known. But my friend’s proposition was that that might make it difficult for a defendant to persuade the trial court that the plaintiff should be disbelieved. That is the wrong question. The question is not whether the
plaintiff should be disbelieved, but whether the plaintiff should be positively believed, having regard to the relevant principles. In this respect, this Court in GLJ, paragraph [71], with respect, made precisely that point. The evidence of the plaintiff:
may be too vague or internally inconsistent or otherwise unconvincing to enable a positive inference to be drawn that it is more likely than not that Father Anderson sexually assaulted GLJ as claimed –
I also cavil with the proposition that the respondent in this case is “utterly in the dark”. What the evidence before the primary judge and before this Court demonstrates is they had the employment records of Lieutenant Swift, which contain numerous documents throughout the course of his period of engagement – if I can use that term – by the respondent.
They knew where he was at all relevant points in time – that is part of the employment records. They knew the dates that he was at the Nedlands home. They know how those dates compare with the dates of the alleged abuse and the period of time over which the plaintiff claims to have been at the home. They have Major Watson’s records, they know when Major Watson was at the home. They know when Major Watson was in charge. They know the nature of Lieutenant Swift’s duties, for reasons I have advanced. They know the layout of the premises.
The allegations are not “vague” or “uncertain” or unspecific, a point emphasised in GLJ at paragraphs [71] and [75]. The applicant has nailed his colours to the mast as to, in a chronological sequence and within the specified period of time, when, where and what happened. There is no vagueness. My friend made a reference to Lieutenant Swift’s widow. As we have pointed out the written submissions, she was alive until 17 May 2019. No suggestion by the respondent they attempted to contact her, yet is now said, because she is deceased, we have lost the opportunity to speak to her about Lieutenant Swift’s duties.
Finally, the flood to which my friend referred is referred to at paragraph 80 of Mr Geary’s affidavit, paragraph 54 of the applicant’s book. The evidence is that it occurred in the 1950s, so it precedes the events in question and seems to be causally irrelevant, so they are not shown to be causally relevant to the suggested prejudice.
May it please the Court.
GAGELER CJ: Thank you. The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.
AT 12.53 PM THE MATTER WAS ADJOURNED
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