RC v The Salvation Army (Western Australia) Property Trust

[2024] HCATrans 32

[2024] HCATrans 032

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 TUESDAY, 7 MAY 2024, AT 3.05 PM

Copyright in the High Court of Australia

MR M.D. CUERDEN, SC:   May it please the Court, with MR T.J. HAMMOND, SC and MS L.D. COCI, I appear for the applicant.  (instructed by Bradley Bayly Legal)

MR D.F. VILLA, SC:   If it please the Court, I appear with my learned friends MS R. YOUNG, SC and MR H.C. COOPER for the respondent.  (instructed by Mills Oakley)

GAGELER CJ:   Thank you, Mr Villa.  Mr Cuerden.

MR CUERDEN:   May it please the Court.  Might I start with – and without in any way seeking to duplicate or replicate what has been said in the matter before this – some observations about the references in GLJ to the concept and the relevance of the impoverishment of the evidence.  The effect of impoverishment of evidence is not an absolute concept, it is not a one‑size‑fits‑all concept; it is fundamentally a practical concept, because the concept of a fair trial is fundamentally a practical one.

In our respectful submission, one of the most important points conveyed by the decision of the Court in GLJ is that the question of whether a trial is shown to necessarily be unfair or not is to be determined in the context of the principles and techniques that are available to a trial court to ensure fairness because, of course, the test of fairness – or unfairness, rather – is whether there is absolutely nothing that the trial court can do to ensure that the trial is fair.

That focuses attention upon the techniques available to the court by the application of principles that are available to remedy or neutralise any suggested unfairness.  Our friends in the case before us have referred to the relevant principles.  They, of course, include the Briginshaw principle, Blatch v Archer, Watson v Foxman, and also the principle reflected in the decision of this Court in Plunkett v Bull, but made in a number of other decisions to the effect that where evidence is being given about something to or said by or done by a person since deceased, and particularly where the person giving the evidence has an interest in the outcome, the court will subject that evidence to the particular scrutiny. 

Those principles, in my submission, have particular a resonance in the context of cases falling within section 6A of the Limitation Act2005 (WA). By definition, the conduct that is the subject of the allegation’s misconduct, or misconduct of the most serious nature attracting the Briginshaw principle, because of the passage of time in our case – 58 years from the time of the alleged misconduct until the proceedings were commenced – the evidence will need to be approached with particular caution because of the well‑established and well‑understood effects on memory – on reconstruction of the passage of time.

And where, as in this case, the alleged perpetrator has died, the Court will naturally subject the evidence of the plaintiff to the scrutiny which the well‑established principles made clear it must be subject. In fact, it might be difficult to conceive of a case of child sexual abuse brought many decades after the event by virtue of section 6A in which some, if not all, of these principles do not operate in some way, shape or form in the particular case. That is all part, in my submission, of the context in which one understands the observations of the majority of this Court in GLJ. 

The context in which a trial court determines allegations of – and I will use the word “historical”, conscious that, as this Court said, there is no such thing, historical sexual abuse – it falls to be considered in a completely different context than, for example, a case such as Batistatos, a claim against a rogue authority in negligence where the issues in the case fell to be considered by reference, primarily, to matters that one would expect to be documented, and that probably were documented at some point in time, but have been lost, and I might add in Batistatos, in a context where the plaintiff had not and potentially was not capable of giving a coherent version of events.  So, the issue in Bastistatos was not merely the inability to investigate particular allegations, it was the inability to know what it should even begin to investigate because the plaintiff’s case was so vague, and the period of time which records needed to be searched was so considerable.

Not only is fairness, in this context, a practical concept, it is a value‑laden concept as well.  It is well and good to say that there is an irreducible minimum content that a fair trial requires, and no doubt there is, but that is to state the proposition in the abstract, and to give that concept meaning requires not merely – not only, I should say – consideration of the practical context in which the trial is being conducted but undeniably involves bringing into account value judgments.  The decision to grant or to refuse a stay is not discretionary but it is evaluative.  It is that evaluative judgment – and I would add, the related concepts, to pick up the language of the authorities – as to what right‑thinking people would think.  Or, to put it another way, what outcome would bring the justice system into disrepute.  It is those concepts that are informed by what the majority of this Court in GLJ described as the “new world”.  There is another aspect in which the observations in ‑ ‑ ‑ 

STEWARD J:   Can I ask a question – I am sorry.

MR CUERDEN:   Of course, your Honour.

STEWARD J:   Having regard to everything you have said so far, what is new about it?

MR CUERDEN:   What is new is that ‑ ‑ ‑ 

STEWARD J:   Apart from the fact that the time bar has been lifted and so you are going to get cases you would not have before because of that.  Other than that, everything you have said so far does not seem new to me.

MR CUERDEN:   What is new is that never before has it been routine, and, in fact, expected, rather than unusual, for claims to be brought in respect of these sorts of allegations – that is, allegations of seriousness of this type where ordinarily there will not be documents or direct corroborating evidence, whether in terms of witnesses or documents so many years after the event.

STEWARD J:   Sorry to trouble you on this, but it seems that what you are saying is that all of the law that was settled prior to GLJ is more than capable of dealing with old cases and really, with section 6A, we are going to see more old cases.

MR CUERDEN:   Except that there has never been a point in time in the Australian legal system in which cases of this age have been tried.

STEWARD J:   But was there anything wrong with the settled principle it would prevent that from being satisfactorily applied to old cases?  I am sorry to test the proposition, but I am just trying to work out where we are at.

MR CUERDEN:   Yes.  There is a point that I am about to come to that I think feeds into the point.  I will answer your Honour’s question ‑ ‑ ‑

STEWARD J:   No, no, no, you will get it to it when you are going to get to it.

MR CUERDEN:   Could I answer this way.  It is the concept of fairness as the touchstone – more correctly, the proven inability to achieve fairness has always been and remains the touchstone.  In giving content to that concept which involves the value judgment, it is informed by an understanding of the effect of child sexual abuse brought about by the report of the Royal Commission – crystallised or articulated might be a better way of putting it – in a way that has not previously been appreciated.

Might I say this.  There was exchange in the case before about the question of “tolerance” – if I might use that word – for unfairness.  Is there a greater intolerance for unfairness ‑ ‑ ‑

STEWARD J:   Not tolerance for unfairness, tolerance for impoverished evidence.

MR CUERDEN:   Yes, and we would describe it at the tolerance for imperfection.

STEWARD J:   Yes, it is another way of putting it.

MR CUERDEN: Because of the sorts of considerations that feed into provisions such as section 6A when they are viewed in what is described as the “new world”, there may be a tolerance for imperfection that might be different to what it was in previous times. That is not to say the standard has changed, but when one understands how these things feed together in the context of the well‑established principles, it does change the level of imperfection that the right‑thinking member of the community is prepared to accept.

The other point that I foreshadowed a moment ago in answer to Justice Steward’s question is although, in this particular case, the respondent’s argument is put on the basis of an inability to achieve a fair trial, the authorities – and particularly by reference to the judgment of Justice Leeming in Moubarak, which was referred to with approval by the majority in GLJ at paragraph 17 – there is the fine distinction between the inability to achieve a fair trial and something short of the inability to achieve a fair trial which might, nevertheless, result in such unfair oppression against the defendant that a stay ought to be granted on the basis that the proceedings are, nevertheless, an abuse of process. 

As we understand the distinction, when one is in the category of pure delay – that is, delay that is not coupled with any other conduct such as unreasonableness or some sort of responsibility for the delay on the part of the plaintiff – which, generally speaking, of course, will not be the case in the context of actions of the present time when one does not have that other element, the test is an unfair trial.

As we apprehend the decisions of this Court, there would need to be something else such as in the decision – the name escapes my mind – the case from New South Wales concerning the prosecution of the medical practitioners arising out of the – Walton v Gardiner, where there was on the part of the prosecuting authority inexcusable delay, such that, although the members of the New South Wales Court of Appeal found there could be a fair trial, it was nevertheless extremely unfair and there was prejudice to the practitioners which, because of the extreme and unacceptable delay on the part of the prosecuting authority, coupled with notions of double jeopardy, led to the grant of a permanent stay despite there being the possibility of a fair trial. 

We would say the possibility for there to be a permanent stay of actions of the present type in the absence of an established inability to achieve a fair trial are affected and are picked up by the observations of the majority in this Court.  It might be difficult to conceive of circumstances in which an action for historical child sex abuse where a fair trial can be achieved would nevertheless be stayed because it might be difficult – not impossible, but it might be difficult to conceive of circumstances that would render the proceedings and abuse of process, even though a fair trial can be obtained.  That is not this case.  This case, as we apprehend it, is put on the basis of an inability to achieve a fair trial. 

So, in a case of the present type falling within the scope of section 6A of the Limitation Act, the principles and techniques described are likely to be of particular significance at the trial.  I make the point that is perhaps obvious, but it is agreed that the trial here will be a trial by judge alone.  There has not been a civil jury trial in Western Australia within living memory.  So, it is not an issue of directions to a jury curing suggested unfairness, it is a question of the trial judge faithfully – and, of course, it must be assumed, and the assumption reflects the reality, the trial judge will faithfully apply the principles that are designed to achieve fairness.  Or, to put it another way, to remediate or undo the unfairness that might otherwise exist because, as the authorities of this Court make clear, one only reaches the conclusion that there cannot be a fair trial if the result of all of the tools within – all the weapons within the armoury of the trial judge are insufficient to ensure that both sides receive a fair trial.

That is why the decision of the Court of Appeal in Moubarak is instructive, because the issue that gave rise to the unfairness in Moubarak was something that of its nature was incapable of being remedied by anything the trial judge could do.  Namely, the fact that the individual defendant, not the institutional defendant, was through mental illness unable to communicate, give evidence, instruct, understand or participate in any meaningful way, and there is nothing that the trial judge could do to undo that state of affairs.  That is not the case before the Court.  The issues that are raised by, or that were raised by the respondent, are evidentiary issues, each of which – and I say this, to the extent they are more than illusory, and we say that largely the complaints made are illusory, but to the extent they have substance they can be met by faithful application of Briginshaw principle.

GLEESON J:   Do these principles really permit a defendant to participate in a trial?  Are they not really – I mean, does the defendant get to do anything more than remind the judge that Briginshaw applies, that the judge needs to scrutinise the evidence?  Is that what the participation amounts to?

MR CUERDEN:   Well, might I say this:  many a criminal defence has been conducted, amounting to no more than a defendant reminding the jury the prosecution bears the burden of proof beyond reasonable doubt.  But the answer to your Honour’s question is there is – the making of submissions, for one thing, is part of the participation in the trial process.  The defendant can cross‑examine – and I am going to come to the question of precisely what it was that the learned primary judge found the prejudice to be – but in respect of the death of – we have called him Lieutenant Swift; he was a captain at the time of his death – in respect of Lieutenant Swift’s death, it was the inability to have put the issues to him during his lifetime. 

Now, what was lost was, were it to be forthcoming from Lieutenant Swift, a denial.  It might not have been a denial.  Forensically, the cross‑examiner missing only an unsworn denial from the alleged perpetrator, in my respectful submission, is certainly not unable to participate, but in fact is not in that much of a different position that any cross‑examiner wishing to test and probe the evidence, in this case, of the plaintiff – in another context it might be of the complainant.

STEWARD J:   Why do you say an unsworn statement? 

MR CUERDEN:   On the premise that the prejudice found by the learned trial judge – primary judge, I should say – was not that there was an absence of sworn evidence from Lieutenant Swift, but that it was the inability to have investigated the matter with him, prior to his death.  That was the prejudice that the learned trial judge found.  That is, if the applicant had raised these issues prior to Lieutenant Swift’s death, and, in fact, his preceding mental illness that rendered him, probably, of limited capacity, then the respondent could have put the allegation to Lieutenant Swift and obtained his response, and carried out such investigation as it might wish to, or might be able to do, as a result of his response.  That was the prejudice that the learned primary judge found. 

At a trial of this action, the trial judge would, of course, be aware of all of the circumstances surrounding Lieutenant Swift’s death and the timing of his death and so forth.  There would not be – and assuming he was to deny the matter, there would not be a sworn denial at trial, but that does not mean that the trial judge would be proceeding on the basis that there was an absence of a denial which might have a different significance if the alleged perpetrator was alive and able to come to court and tell the court that he or she denied the allegations.

The absence of a denial does not equate, in a case such as this, to some sort of admission.  The respondent is entitled and able to conduct the case, including the cross-examination, on the basis that it does not know, but it will test, probe, explore, with the plaintiff in cross‑examination, all the sorts of issues that would normally arise.  The respondent points to the fact that it has three versions, as it were, from the applicant of the allegations:  it has the statement of claim, it has a sworn affidavit, and it also has a version reduced to writing in 2009 when the applicant made an application under the redress scheme.  In the ordinary way, the cross‑examiner has the ability to put those competing versions to the applicant.

STEWARD J:   You say you can put those versions, but in Moubarak President Bell made it quite clear that, because of the mental state of the alleged perpetrator, the cross‑examination would have been inutile.  You might have got some things but, at the end of the day, because you do not know whether it happened or it did not happen, you could not put to the complainant – take this case:  Lieutenant Swift says he did not do it, what do you say?

MR CUERDEN:   That is the one thing that could not be done, is to engage in a frontal attack based on a denial.

STEWARD J:   That is what President Bell said in Moubarak put them utterly in the dark, because they did not know one way or the other.

MR CUERDEN:   In my submission, Moubarak turned on the fact that the defendant lacked the capacity.

STEWARD J:   And here the relevant person – Lieutenant Swift, it is not the Salvation Army – is dead.

MR CUERDEN:   He is dead but the Salvation Army, who is the defendant who will be giving instructions to solicitors and counsel, has capacity.

STEWARD J:   I understand that, but how does the Salvation Army give instructions when it does not know what has happened?  It has no means of knowing.  I understand that they are the client here, unlike Moubarak, but practically it is the same problem.

MR CUERDEN:   In my submission that is the point of distinction with Moubarak that the unfairness ‑ ‑ ‑

STEWARD J:   But given this is all about practical matters, as you have submitted, how does the Salvation Army give instructions?

MR CUERDEN:   They obviously cannot give instructions on the basis of a known state of affairs, but that is not uncommon.  A plaintiff may often make a claim, for example for personal injuries, claiming they slipped and fell on a floor, on a footpath.  The defendant defends the action – the trial is not unfair because the defendant cannot find CCTV footage or an independent witness, it does not know, but it cross‑examines the plaintiff; testing the evidence, probing the evidence, exploring inconsistencies, exploring it ‑ ‑ ‑

STEWARD J:   But in that sort of case, you will have medical evidence of the injuries, so we will know something has happened.  The problem here, as I perceive it, is that it does not have anything, other than some propensity evidence that I suspect you will propose to lead.

MR CUERDEN:   There are a number of scenarios in which a defendant may be required to cross‑examine a plaintiff – or, for that matter, a plaintiff cross‑examining a defendant – where they have nothing more than the sworn evidence of that witness as to what happened, and they test, they probe, and they explore inconsistencies, and, of course, one cross‑examines, not only by reference to what one is told by one’s client or one’s principal witness but by reference to the objective probabilities, inherent probabilities, likelihoods, all those sorts of considerations.

For example, in this particular case, it is referred to both in the applicant’s affidavit and the affidavit of Ms Littlefair, although the premises were demolished some years ago, there has been obtained, under subpoena from the local government library, a number of records relating to the premises:  photographs of the premises, reconstruction – not made for the purposes of this case – but reconstructions held by the library of the layout of the premises, and so forth.  So, there is the ability to cross‑examine by reference to those sorts of objective materials.

EDELMAN J:   Your submission, as I understand it, is that the concept of fairness has not changed at all before or after GLJ but the content of it may have changed because the inputs or values by reference to which fairness is to be assessed have changed.  I take it you also do not suggest that the abuse of process question is to be adjudicated by reference to balancing the interests of a plaintiff and a defendant.

MR CUERDEN:   No.  We do not, no. 

EDELMAN J:   Why, then, would Moubarak necessarily be decided the same way?  If the norm or the changing content of fairness brings in values such as – although you have not articulated them, I understand them to be things like exposing sexual assaults, sexual violence, the matters the Royal Commission was concerned with.  If that is one of the changed values that is to be inputted into the assessment, why is Moubarak necessarily correctly decided?

MR CUERDEN:   Because the fundamental basis for the decision in Moubarak which was effectively – in a criminal context, would be an inability, an unfitness, to stand trial – by analogy.  I appreciate the Court did not suggest that the principles could be transplanted.  But that was the single most significant consideration in Moubarak.  There is certainly reference to the fact that the allegation had not been – the defendant had not been confronted with the allegation prior to descending into the state of incapacity in which he was.  But it was his incapacity, coupled with the fact that there is a distinction between institution and individuals, which rendered the trial unfair.

BEECH-JONES J:   Mr Cuerden, in this case, just at a factual level, why is the respondent in the position of, say, the respondent in GLJ, where, even though it did not have in that case the specific response of, I think, Father Anderson for specific complaints, it had material which enabled it to form a sensible judgment as to what attitude it would take.  Where is that here?

MR CUERDEN:   Could I suggest that in GLJ it was an informed guess, might be a way – it was an inference.  It would be drawing inferences from the matters that were known.  In this case, the respondent is not in a position to form – well, it may form a view based on what it knows in terms of the proposed propensity evidence and so forth.  It would be drawing its own inference potentially from the view it formed about propensity evidence that was available.  But at highest, it is in the position where it has to be agnostic as to the truth or otherwise of the allegation of abuse, and it conducts the trial on the basis that, as everybody knows and as the trial judge knows, the reason there is no denial is not because there is an admission but because the alleged perpetrator is deceased and it cross‑examines on that basis, it makes submissions on that basis.

The fact that there is the principle enunciated by this Court in Plunkett v Bull concerning the particular caution with which one treats evidence of things said to or by a person since deceased simply illustrates the fact that there is no inherent unfairness in evidence of a one‑sided conversation because the other participant ‑ ‑ ‑ 

STEWARD J:   If they have to be agnostic, does that mean that it would be unethical to put to the complainant that it did not happen?

MR CUERDEN:   I think that question could not be put.  There could not be the confrontation or cross‑examination, and there could not be the direct affirmative proposition that it did not happen.

STEWARD J:   Does that have Browne v Dunn-type consequences?

MR CUERDEN:   No, no, because the rule in Browne v Dunn, of course, fundamentally applies if the evidence of this witness is inconsistent with the evidence to be given, which is not the case.  But the trial judge understands that the witness is being cross‑examined to test and probe and explore the evidence in order for a submission to be made.  Depending on the answers to the question and the invocation of the well‑known principles, this evidence, your Honour, just does not reach the level of cogency which your Honour should be accepting as proof of an allegation of the seriousness that is made.

GLEESON J:   Mr Cuerden, can I go back to your observation about a distinction between cases brought against individuals and cases brought against institutions.  Is there any relevant distinction beyond the fact that an institution might have records which would mean that it would be possible to have a fair trial in circumstances where an individual would be expected to have created no records or would in fact have no records?

MR CUERDEN:   Certainly, in the ordinary course, I accept the potential existence of records is a relevant consideration.  There is the more fundamental fact that an individual, unlike a body corporate, has a body to get sick and, as in Moubarak, to become incapacitated.  If an individual was incapacitated or died before the allegations were put to them, on the reasoning of Moubarak, it could not be a fair trial.  I would also say if one is in the territory of abuse of process through oppression short of being an unfair trial, there might be greater scope for the invocation of that ground for a stay by an individual than a corporate body because of the potentially oppressive impact upon an individual as opposed to a body corporate and, in fact ‑ ‑ ‑

GORDON J:   In what way?

MR CUERDEN:   Connellan v Murphy may be an example.  Just in the sense that, particularly if a person is elderly and so forth, there might be circumstances that combine that have an effect on that individual as a person, as a human being, in a way that cannot be said to be the case in the context of a body corporate.

GLEESON J:   Then is the distinction that you are drawing between individuals and institutions per se, or between individuals and institutions that had a recordkeeping practice?

MR CUERDEN:   I would say there is no per se in this context in the sense that every case does need to be worked out but, no, the distinction I was drawing there was not based on records, it was based on the oppressive nature of the impact upon the proceedings.  Could I illustrate it this way.  Connellan v Murphy, it might be thought, would not have been decided the same way.  I appreciate it was a domestic context, so the exact facts could not be replicated in an institutional context perhaps.  Perhaps they could.  But had that claim been brought against an institutional defendant, it might be difficult to conceive that a stay could or would or should have been granted.  It was the fact that it was an individual who was elderly at the time of trial who was a teenager at the time of the alleged events with a fleeting memory, and so forth was important.

STEWARD J:   In CM, Justice Leeming said that the distinction was decidedly odd.  He wondered why one class of child sex abuse would be more likely to go to trial than another.

MR CUERDEN:   Well, it still has to be the extreme case ‑ ‑ ‑

STEWARD J:   Is it better to just look at the distinction at that practical level that you started with?

MR CUERDEN:   It is certainly relevant.  All I am doing is acknowledging the possibility that there might be more scope for operation of the principles concerning a stay because of the qualitatively different way in which litigation affects an unsophisticated individual than it does a body corporate – an institution.  If one brings those principles into operation in the context of a particular trial, notwithstanding what is put against us, one might in fact say the cards are stacked.

I do not want to over-egg this, but one might say the cards are stacked in favour of the defendant institution or defendant alleged perpetrator who is able to call in aid all of these principles with the potential effect that a claim by a plaintiff, even if it were assumed for the sake of the argument that the allegations were true and the abuse happened, because of issues about effect of time on memory – cogency of proof – the particular caution that might need to be given to the plaintiff’s evidence because of the death of the alleged perpetrator might well result in claims – just as claims against criminal – charges against guilty people are unsuccessful – it may result in claims of abuse that in fact happened, in fact occurred, being unsuccessful because of the application of these principles.

At one level – to the plaintiff concerned – that will offend against their sense of justice.  But at the macro level at which the issue needs to be judged, that does not offend against the right‑thinking person’s view of justice – that is justice according to law.  On the other hand, if the defendant institution, in a position in which the defendant – or the respondent, in this case – is, or claims to be, with all of those principles able to be relied on by it – and, no doubt, advanced forcefully at trial – the submissions made about cogency of evidence and the absence of witnesses and particular caution because of Lieutenant Swift’s death, and it loses, and the judge, having heard the evidence and having taken into account all of those principles says, I am saying all that, and I exercise the caution, and I am assessing the plaintiff’s evidence with the particular care that I must, finds the allegations proven – the defendant has not lost unfairly.

STEWARD J:   Can I ask you:  does the right-thinking person need to take into account the possibility of exposing a potential plaintiff to adverse order for costs? 

MR CUERDEN:   The right-thinking person, in my submission, would say that is a matter for the plaintiff.  They go into this with their eyes open.  If the plaintiff’s claim fails because the evidence does not achieve the requisite level of clarity and cogency and so forth, it fails, but it is failed after trial, not by preventing a trial taking place in the first place.  Having made those observations – and I have to some degree touched on issues that I proposed to raise, particularly in the context of ground 3 – might I move to ground 1.

Might I invite the Court to take up in the reasons of the learned primary judge at paragraph 141 – this is in the supplementary core appeal book, page 46.  This is the learned primary judge’s finding as to the significance of Lieutenant Swift’s death, which his Honour described as:

a significant factor in favour of the grant of a stay –

and, in my submission, when one reads the judgment as a whole and this passage in context, it would be fair to describe it as the single most important factor in support of the grant of a stay.  And the learned primary judge was careful and deliberate in the finding that he made about the significance of Lieutenant Swift’s death. 

The significance was not that Lieutenant Swift is no longer available as a witness, it is not that he was even unable to be consulted or communicated with in the context of the defence of the proceedings, but it is the fact that he had not been confronted and, more particularly in context, the respondent organisation had not been made aware of the plaintiff’s allegations before Lieutenant Swift died such that the respondent had no opportunity to carry out an investigation.

That is to say, had Lieutenant Swift – I beg your pardon – had the respondent organisation been informed of the applicant’s allegations at a time prior to Lieutenant Swift’s death and at a time when Lieutenant Swift had sufficient capacity such that the respondent could have carried out an investigation, the learned primary judge found there was no unfairness to the respondent, notwithstanding that Lieutenant Swift subsequently died.

Now, we have made the submission that Lieutenant Swift’s death was central not only to the learned primary judge’s decision but also to the application itself, and the relevance of that is that issues that were subsequently agitated by the respondent by way of submissions rather than evidence, particularly the focus on vicarious liability which is an issue that has been put front and centre in this Court, were matters, in terms of the evidence, of apparently no concern, or at least a limited and unarticulated concern to the respondent.

In that respect, might I invite the Court to take out the applicant’s book of further materials, and at page 23 one will see what was, in substance, in effect, the supporting affidavit of the respondent’s solicitor, Mr Geary.  There was a further affidavit that came in but that dealt with some particular discrete issues.  Mr Geary in a lengthy affidavit set out the steps and inquiries that had been taken to gather information.

At page 71 of the book, under the heading “Summary”, he then drew those together and explained why he was of the view that the proceedings should be permanently stayed.  It is not quite clear how paragraphs 124 and 125 to 129 work together.  It seems that perhaps 125 to129 are some explication of what appears at 124.  But the burden of those paragraphs is directed to Lieutenant Swift’s death and the consequent inability to investigate.  What I might say - - -

GORDON J:   Sorry, can you just put that proposition again?  I did not quite understand the point that was being made.  Are you saying that the whole of the summary of the matters listed between (a) and (d) and following are directed at the death of Lieutenant Swift?

MR CUERDEN:   No, the burden of paragraphs 124 and then 125 to 129 are directed to Lieutenant Swift.  I accept within 124(b) and (c) are not – although (b) and (c) are matters that – unless (b) is simply the absence of any other witnesses.

GORDON J:   Well, that is what it says:

no evidence has been provided to the Defendant to enable it to interview any potential witnesses –

“medical assessment” is at (c).  It has nothing to do with the death of Swift.

MR CUERDEN:   No.  So, (c), that formed no part of the learned primary judge’s reasons.  Sorry, I did not mean to suggest that literally everything was to do with Swift; the burden, the majority, the substance of it is Lieutenant Swift.  Paragraphs 124(a) and (d) are concerned with Lieutenant Swift and the same is true of 125.  Paragraph 126 is about records relating to Swift and allegations of abuse by Swift in the records.  Then 127, 128 and 129 are directed to the effect of Lieutenant Swift’s death.

GAGELER CJ:   This is a mixture of evidence and submission, is it?  Is this form of affidavit common?

MR CUERDEN:   I am told regrettably so from my right-hand side.

GORDON J:   You say, readily?

MR CUERDEN:   Regrettably so.

GORDON J:   I see.  I thought you said “readily”.

MR CUERDEN:   And my learned junior, Mr Hammond, is agreeing.  What is interesting about it being a mixture of evidence and submission is that Mr Geary, the solicitor for the respondent, is not simply the solicitor briefed or engaged for this particular matter, but if one goes back to page 30 of the book, at paragraph 1 of the affidavit, he was the solicitor who had been instructed for the respondent with respect to the Royal Commission. 

He is someone who, one might reasonably infer, had a reasonably intimate or reasonably familiar understanding of the organisation, and when he came to express his opinion, at 124 to 129, it was, one might think, an informed one.  I say this now simply so I do not take the Court back to this paragraph when I deal with ground 3, but one will not see any reference in here to a concern about vicarious liability, for example – an inability to deal with a case of vicarious liability. 

Nor does one see, at least in terms – it might be said but it is there implicitly in some way – in these paragraphs or elsewhere in the affidavit an express concern by Mr Geary about the ability to deal with the duty of care, the direct liability case, either.  The affidavit is directed to – and I appreciate Justice Gordon has reminded me, not exclusively, but it is directed, predominantly, to the prejudice said to have been caused by Lieutenant Swift’s death.  The learned primary judge took this evidence, and, of course, all of the evidence, and made the careful and deliberate finding that he did. 

GAGELER CJ:   Did he place weight on the opinion of the deponent?

MR CUERDEN:   He did not say expressly, no.  The learned primary judge did not treat Mr Geary, for example, as having any particular special knowledge, no.  His Honour took all that and made the finding that he did at 141.  So, the basic proposition that we advance in ground 1 is that – I appreciate the respondent says this was not the sole basis of the application; we say it was the single most important, but it was certainly “a significant”, to use the learned primary judge’s words.

To the extent the learned primary judge relied on the respondent organisation’s inability to investigate the matter because it was not informed of the allegations prior to Lieutenant Swift’s death, in our submission, having regard to the principles that concern the grant of permanent stays and the need for irremediable prejudice to be shown by the respondent who bears the burden of proof, the respondent needed to show that, had it been informed of the allegations of abuse prior to Swift’s death, it would have carried out an investigation, because if it would never have investigated anyway, it was in precisely the same position that it is in now. 

It is put against us that there is a difference between a situation in which a person is actually put on notice of an allegation but through their own fault fails to take it up, which our friends acknowledge would stand in the way of the grant of a permanent stay, as we apprehend their submissions.  It said there is a distinction between that and the present case.  We say, in principle, there cannot be, because if the lost opportunity to investigate would never have been taken up or, more correctly, the respondent does not show that it would have been taken up, it is an opportunity lost that had no value, that would not have made a difference.

STEWARD J:   I think there has to be a difference between evidence of practices in the 1950s and the 1960s of dismissing claims versus what would have happened if the Salvation Army had been sued by a complainant.  You are not suggesting they would have just done nothing.  If they had been sued, as they are here, they would have taken steps to find out from Lieutenant Swift what the position is.

MR CUERDEN:   Undoubtedly, undoubtedly.  In our respectful submission, that is the error the Court of Appeal made in asking a different question to the question posed by the primary judge’s finding.  The primary judge made the finding that what was important was the lack of notification.  The Court of Appeal said it might not be reasonable to investigate it unless they actually received an overt threat of litigation.

As we read the Court of Appeal’s reasons, the court says that is so even if the knowledge arose during the original limitation period which ran for 11 years.  Because the alleged abuse occurred as a minor, in Western Australia the six years started to run from the time he turned 18.  So, the total limitation period from the time of the alleged abuse was 11 years, or thereabouts.  As we read the Court of Appeal’s reasons, even had the Salvation Army become aware of the alleged abuse in that period, it would not be expected to investigate unless it was coupled with an overt threat of litigation.  We say that is, with respect – if that is the correct reading of the court’s reasons – wrong at a number of levels.

BEECH-JONES J:   What part of the reasons are you referring to?

GORDON J:   Yes, what is the high point of that submission you just put in terms of the findings made?  You say that in the application for special leave in paragraph 1, but what other bits did you rely upon?

MR CUERDEN:   Yes, it is in the application for special leave.  It is in our submissions.

GORDON J:   Just give us what you regard as the high point of those findings that – tomorrow morning is fine, but at some point it would be very helpful.

MR CUERDEN:   Indeed, yes.  I might identify the paragraphs overnight, if I might.  What the Court of Appeal also did – and we have set out in writing in some detail why we say the court erred by taking some observations made by the New South Wales Court of Appeal in the Trinity Grammar Case and elevating them to a statement of principle – it is in writing.  I was not proposing to repeat that.  But what the Court of Appeal did was to say there is no such burden of the type that we suggest on the respondent, because any such burden would be too onerous and unfairly difficult to discharge.

I will not repeat all that we have said in writing about that either, but the reason – the only reason – the burden was a difficult, perhaps impossible, one to discharge in the context of this particular case is because of the evidence, which I propose to come to shortly, given by the most senior member of the Salvation Army within Australia – at least within Western Australia – at the Royal Commission that negatived any suggestion that there might have been an investigation.  In the ordinary course, what one would expect to see is either some positive evidence that, had we been told, we would have investigated, or, alternatively, the court being invited to draw an inference that an investigation would have happened because, in the ordinary course, if people are informed of serious allegations of wrongdoing, it might be inferred they will investigate.

One might think that in the vast majority of cases that inference would be available.  The problem for the respondent organisation is that the evidence which Commissioner Tidd gave to the Royal Commission, we say, not only established positively on the balance of probabilities that it would not have investigated, but at the very least negatived any available inference that it would have done so.  And that is the reason why the respondent faces the evidential dilemma that it does, and it is ‑ ‑ ‑ 

STEWARD J:   Is that the scenario we are concerned with here, namely, a complaint without law, or are we concerned with a situation, for example, of the commencement of suit within the 11‑year original time period, what would the Salvation Army have done then?  Why is the focus on a mere complaint and not what would have happened if they had been sued earlier?

MR CUERDEN:   Because one needs to tie the suggested prejudice to what the learned primary judge has found, and the learned trial judge has found that the prejudice was not the absence of suit.  The prejudice was not Lieutenant Swift having died prior to giving evidence, it is the absence of complaint – absence of notification, I should say, prior to Swift’s death.  That was the prejudice which his Honour identified, and that is the suggested prejudice that needs to be assessed, in my respectful submission.  If it cannot be shown on the evidence that that would have made any difference, then it goes nowhere. 

STEWARD J:   Is your evidence sufficient to take you right up to the moment, I think 1994, when times changed?

MR CUERDEN:   Yes, it is.  We say it is 1997, but I accept there is a –
it does not make a difference.  We say, yes, because Lieutenant Swift, although he died in 2006, the evidence – and this seems to be common ground – is that when he retired in 1989, he was already suffering from a reasonably advanced degree of Alzheimer’s disease.  So, he retires in 1989 with Alzheimer’s, it is then either in 1994 or 1997 that the scheme comes into operation, he then dies in 2006. 

With respect to the period between 1994 or 1997 and 2006, one has regard to the evidence of Mr Brewin, who is the solicitor who gave evidence to the Royal Commission and was responsible for managing the scheme as to how in fact it operated in practice.  To paraphrase the evidence, they would not always speak to the alleged perpetrator and where, for example, the alleged perpetrator was too ill to speak or suffering from an illness of the type that Lieutenant Swift was suffering from, they may not be given permission by the Salvation Army to speak to them.

So, the net effect of that is that, had – and this is really the bottom line on this point – the applicant, at any point between – leave aside the disputed complaint to Major Watson around 1960, had he made a complaint to the Salvation Army the day after he left the home in 1961, up until the day of Lieutenant Swift’s death, for one reason or another, it would not have been investigated.  We say that is the positive effect of the evidence.  At the very least, the evidence negates a suggested inference the other way.

I am about to take the Court – relatively briefly, I think – to the evidence that was before the primary judge.  That is, the evidence of Commissioner Tidd’s and Mr Brewin’s statements to the Royal Commission.  Can I inquire from your Honour the Chief Justice whether you would like me to proceed with that now – move to that new topic?

GAGELER CJ:   How long will that topic take?

MR CUERDEN:   Fifteen minutes.

GAGELER CJ:   No, we will adjourn until 10.00 am tomorrow.

AT 4.12 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 8 MAY 2024