RC v The Salvation Army (Western Australia) Property Trust

[2021] WADC 117

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   RC -v- THE SALVATION ARMY (WESTERN AUSTRALIA) PROPERTY TRUST [2021] WADC 117

CORAM:   GETHING DCJ

HEARD:   12 NOVEMBER 2021

DELIVERED          :   1 DECEMBER 2021

FILE NO/S:   CIV 4329 of 2018

BETWEEN:   RC

Plaintiff

AND

THE SALVATION ARMY (WESTERN AUSTRALIA) PROPERTY TRUST

Defendant

Catchwords:

Civil procedure - Stay application - Historic child sexual abuse action - Abuse alleged to have occurred over 60 years ago - No complaint made while alleged perpetrator still alive - Whether defendant can meaningfully defend the action

Legislation:

Limitation Act 2005 (WA), s 6A

Result:

Plaintiff's claim permanently stayed

Representation:

Counsel:

Plaintiff	:	Mr T J Hammond & Ms L D Coci
Defendant	:	Mr D Villa SC & Ms R Young

Solicitors:

Plaintiff	:	Bradley Bayly Legal
Defendant	:	Mills Oakley

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

Abdulla v Birmingham City Council [2012] UKSC 47; [2013] 1 All ER 649

Ailakis v Olivero [No 2] [2014] WASCA 127

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

CAND v The State of Western Australia [2018] WASCA 101

Chalmers v Leslie [2020] QSC 343

Connellan v Murphy [2017] VSCA 116

Estate Judd v McKnight [No 4] [2018] NSWSC 1489

GMB v UnitingCare West [2020] WADC 165

Grant v Bird [2021] VSC 380

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Longman v R [1989] HCA 60; (1989) 168 CLR 79

Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105

Moubarak by his tutor Coorey v Holt [2019] NSWCA 102

Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209

Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20

PCB v Geelong College [2021] VSC 633

Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134

R v Edwards [2009] HCA 20; (2009) 255 ALR 399

The Council of Trinity Grammar School v Anderson [2019] NSWCA 292

Ugle v Masters [2021] WADC 8

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

Ward v Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776

WCB v Roman Catholic Corporation for the Diocese of Sale (No 2) [2020] VSC 639

Webb v Tang [2021] WASC 344

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

YNT v The State of Western Australia [2021] WASCA 89

ZYX v JD [2019] WADC 164

GETHING DCJ:

1. Overview

1. In an action commenced in this court in November 2018 (Action), the plaintiff seeks damages for breaches of duty and intentional tort arising from sexual abuse he says suffered at the hands of a then Lieutenant Frank Swift in 1959 and 1960 when he was placed in the Nedlands Boys' Home (Home).[1]

   [1] Lieutenant Frank Swift subsequently became a Captain, though for ease of reference I will to him as 'Lt Swift'.

2. The Home was owned and operated by the defendant, the Salvation Army (Western Australia) Property Trust.

3. By chamber summons filed 25 May 2021, the defendant sought an order permanently staying the action (Application).  This was on the basis that, despite the defendant having exhausted reasonable inquiries, more than 60 years after the relevant events are said to have occurred the defendant cannot meaningfully defend the action.  Accordingly, the defendant contends that it would be manifestly unfair for it to be made to do so and thus contrary to the interests of justice to allow the Action to continue.

4. The plaintiff opposes the Application on the basis that any prejudice faced by the defendant in defending the Action is not so serious that a fair trial is not possible.  Nor is the case so extraordinary as to require the exceptional power to grant a permanent stay to be exercised.  Among other points, the plaintiff submits that any prejudice suffered by the defendant must be viewed in the light of the available evidence and the objectives of the amendments to the Limitation Act 2005 (WA) (LA) which allowed the plaintiff to commence his action notwithstanding how long ago the abuse is said to have occurred.

5. For the reasons which follow I am satisfied that in the particular circumstances of this case it is both necessary and appropriate to take the exceptional step of permanently staying the Action.

1. Application

1. The defendant filed two affidavits in support of the Application.  Each was sworn by Luke Geary, who is a partner of the defendant's lawyers.  The affidavits were made on 24 May 2021 (First Geary Affidavit) and 22 October 2021 (Second Geary Affidavit).

2. The plaintiff filed four affidavits in opposition to the Application.  The first was made by the plaintiff on 7 October 2021 (Plaintiff's Affidavit).  The remaining affidavits were made by Rosemary Alice Littlefair on 8 October 2021 (First Littlefair Affidavit), 26 October 2021 (Second Littlefair Affidavit) and 12 November 2021 (Third Littlefair Affidavit).  Ms Littlefair is a solicitor employed by the plaintiff's lawyers.

3. Both parties filed detailed written submissions.[2]

   [2] Being the Defendant's Outline of Submissions filed 22 October 2021 (Defendant's Submissions), the Plaintiff's Outline of Submissions filed 29 October 2021 (Plaintiff's Submissions) and the Defendant's Outline of Submissions in Reply filed 5 November 2021 (Defendant's Reply Submissions).

4. It is instructive to commence by reviewing the legal principles by which the Application is to be decided (Part 3).  It is then necessary to place the Application in the context of the plaintiff's case (Part 4) and the defendant's case (Part 5).  The factual basis for the Application is the evidence which is now no longer available to the defendant, which is considered in Part 6.  Against this factual basis, the prejudice to the defendant's ability to have a fair trial can be assessed (Part 7), along with the plaintiff's response to those concerns (Part 8).  The Application is then to be determined by balancing the competing risks of unfairness (Part 9).

1. Principles by which the Application is to be determined

1. For many, many years prior to 1 July 2018 any claim by the plaintiff against the defendant alleging child sexual abuse was statute barred. On that date LA s 6A came into effect. By LA s 6A(2), '[d]espite anything in this or any other Act, no limitation period applies in respect of a child sexual abuse action'. A 'child sexual abuse action' is defined in LA s 6A(1) to mean a cause of action that relates, directly or indirectly, to a personal injury of the person to whom the cause of action accrues, where the injury results from child sexual abuse of the person. It is not in issue that the claim brought by the plaintiff in this action against the defendant is a child sexual abuse action to which LA s 6A(2) applies.

2. The LA then reserves the ability of the court control proceedings brought pursuant to LA s 6A(2) in the usual manner. Specifically, LA s 6A(5) provides:

   (5)        This section does not limit -

   (a)any inherent, implied or statutory jurisdiction of a court; or

   (b)any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.

   Note for this subsection:

   For example, this section is not intended to limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.

3. The power of the District Court to permanently stay an action as an abuse of its processes is found in the statutory incidental jurisdiction of the court.[3]

   [3] District Court of Western Australia Act 1969 (WA) s 6 ('jurisdiction includes all powers and authorities incidental to the exercise of jurisdiction'); Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209 [16] (Steytler J, with whom Wallwork J agreed).

4. The note at the conclusion of LA s 6A(5) is illustrative, and does not operate to restrict the power of the court to dismiss or stay proceedings to cases in which it determines that a fair trial is not possible.[4] Nor does the language used in LA s 6A derogate from the principles at common law governing the grant of a stay.[5]

   [4] GMB v UnitingCare West [2020] WADC 165 [37] (Bowden DCJ) (GMB); Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 [37] (Bell P, with whom Leeming JA & Emmett AJA agreed, with each adding some further comments), [185] ‑ [187] (Leeming JA), [203] (Emmett AJA) (Moubarak).

   [5] Moubarak [187]; GMB [152].

5. The starting point is that the plaintiff, having regularly invoked the jurisdiction of the District Court, has a prima facie right to insist upon its exercise.[6]  Nonetheless, there is a well‑established power to permanently stay proceedings, both civil and criminal, on the ground that the continuation of the proceedings would abuse the processes of the court.[7]  The power to grant a stay will be exercised 'as and when the administration of justice demands'.[8]  Moreover, that power has been exercised to permanently stay a historic child sexual abuse claim brought following removal of the statutory bar imposed by limitation legislation,[9] including LA s 6A.[10]

   [6] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105 [160] (judgment of the court).

   [7] See for example:  Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 518 (Mason CJ, Dawson, Toohey & McHugh JJ) (Spautz); Mineralology [161] as per [6].

   [8] Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 74 (Gaudron J). See also: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [12] (Gleeson CJ, Gummow, Hayne & Crennan JJ) (Batistatos).

   [9] See generally the cases reviewed by Bowden DCJ in GMB ([47] ‑ [64]) and Shepherd DCJ in Ugle v Masters [2021] WADC 8 [64] ‑ [139] (Ugle).

   [10] Ugle (jurisdiction accepted, but stay not granted on the facts); GMB (stay granted); ZYX v JD [2019] WADC 164 (ZYX) (jurisdiction accepted, but stay not granted on the facts).

6. The general principles governing the grant of permanent stay were recently summarised by Bell P in Moubarak, drawing on the decisions of the High Court in Jago, Spautz, Walton v Gardiner[11] and Batistatos being:[12]

   [11] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 (Walton).

   [12] Moubarak [71] (references omitted).

   (1)The onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant …

   (2)A permanent stay should only be ordered in exceptional circumstances …

   (3)A permanent stay should be granted when the interests of the administration of justice so demand …

   (4)The categories of cases in which a permanent stay may be ordered are not closed …

   (5)One category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive …

   (6)The continuation of proceedings may be oppressive if that is their objective effect …

   (7)Proceedings may be oppressive where their effect is 'seriously and unfairly burdensome, prejudicial or damaging' …

   (8)Proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party …

   (9)Proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people …

7. A number of other general principles may be added:

   (a)the exercise of the power preserved by LA s 6A(5) is to be worked out on a case by case basis;[13]

   (b)a decision to grant or refuse a stay is a discretionary one;[14]

   (c)in considering whether to grant a stay, it is necessary to focus on the particulars to the statement of claim;[15]

   (d)there is no requirement on the defendant to establish that the plaintiff's case is untenable - a tenable case may nonetheless be permanently stayed;[16] and

   (e)courts take a different approach to the provision of a stay for an abuse of process in civil cases, as opposed to criminal cases, with the courts being less inclined, generally, to grant a stay in civil proceedings.[17]

   [13] Moubarak [193].

   [14] The Council of Trinity Grammar School v Anderson [2019] NSWCA 292 [431] (Bathhurst CJ with whom Payne JA & Simpson AJA agreed) (Trinity Grammar); though see the statement to the contrary in ZYX [13].

   [15] Trinity Grammar [409], [443].

   [16] Moubarak [196]; GMB [38].

   [17]Batistos [8]; GMB [43] – [44]; ZYX [14] - [15].

8. The primary argument relied on by the defendant is that the consequences of the delay by the plaintiff in commencing the Action means that it would be manifestly unfair to the defendant to have to defend the Action.[18]

   [18] Walton (393) (per Mason CJ, Deane & Dawson JJ); Batistatos[6].

9. It is at least sufficient for the defendant to prove on the balance of probabilities that it will not be possible for it to obtain a fair trial.[19]  Or, put slightly differently, that the continuation of the case through to trial would involve 'unacceptable injustice or unfairness'[20] or 'unjustifiable unfairness'.[21]  The approach adopted by the Bathurst CJ, with whom Payne JA and Simpson AJA agreed, in Trinity Grammar was as follows:[22]

   The question is whether, in light of the matters raised,  Trinity can meaningfully deal with the allegations, or whether the proceedings are unjustifiably oppressive to Trinity, or whether, having regard to the position of Trinity, the continuation of the proceedings will bring the administration of justice into disrepute.

A similar approach, focussing on whether the defendant can meaningfully defend the action, was taken by Bowden DCJ in GMB[23] and Keogh J in Grant v Bird.[24]

[19] Moubarak [88], [188], [196].

[20] Walton (392); Moubarak [189] - [190] (though note Leeming JA's conclusions at [188] and [196] that a 'fair trial is impossible').

[21] Connellan v Murphy [2017] VSCA 116 [62] (judgment of the court) (Connellan).

[22] Trinity Grammar [446], [506].

[23] GMB [129], [151].

[24]     Grant v Bird [2021] VSC 380 [59] (Keogh J) (Grant).

1. The defendant does not have the right to a perfect trial, only a fair trial.[25]  As the High Court observed in R v Edwards:[26]

   Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed.  Witnesses may die.  The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.

   [25] Moubarak [89]; GMB [151]; Ugle [53]; ZYX [57].

   [26] R v Edwards[2009] HCA 20; (2009) 255 ALR 399 [31] (judgment of the court) (footnote omitted).

2. In order to have a fair trial of a civil action, an individual defendant must have the ability to give instructions, decide what defence will be relied on and to make his or her version of facts known to his or her counsel and, if necessary, the court.[27]  By analogy, in order to have a fair trial of a civil action, a corporate defendant must have the ability to gather sufficient factual information to give it the ability to give instructions, decide what defence will be relied on and to make its version of facts known to counsel and, if necessary, the court.  It must have sufficient information to determine its approach to the defence of the action, including whether to admit or deny allegations on an informed basis.[28]  I endorse the observation of Bowden DCJ in GMB that for 'a trial to be fair the ... defendant has to be able to run a meaningful defence'.[29]

   [27] Moubarak [109]; Ugle[58].

   [28] GMB [145].

   [29] GMB [151].

3. In Moubarak Bell P made the following observations as to the effect of delay on the trial process:[30]

   This involves what Lord Sumption in Abdulla referred to as the impoverishment of the evidence available to determine the claim.  This consequence and its significance will inevitably vary from case to case.  It is less likely to be a critical factor where the resolution of a case turns predominantly on documentary evidence, particularly in an age of extensive data retention.  Delay in such a case is unlikely to have a bearing on the fair and just resolution of such a dispute at trial, however long after the events in question that trial occurs.  By way of contrast, the impoverishment of evidence will be more acute where a trial is exclusively or heavily dependent on oral evidence and the quality of witnesses' memory and recollection.

   [30] Moubarak [77], referring to Abdulla v Birmingham City Council[2012] UKSC 47; [2013] 1 All ER 649 [41] (Lord Sumption).

4. In relation to the impact of delay, some principles appear settled:

   (a)delay in commencing proceedings by itself will not normally justify a stay;[31]

   (b)the fact that the credibility and reliability of the plaintiff's version of events is able to be tested and challenged in cross‑examination is not sufficient without more to avoid a stay being granted;[32] and

   (c)the mere absence of documentary evidence or the absence of a witness through death or incapacity does not have the automatic consequence that a trial will be unfair or that a permanent stay should be granted - though in some circumstances, it may.[33]

   [31] GMB [128]; Ugle [27]; ZYX [46].

   [32] GMB [141], [156].

   [33] Moubarak [93]; Ugle [55], [57].

1. The plaintiff's case

1. The plaintiff's case is set out in the Plaintiff's Affidavit and the Statement of Claim lodged 2 May 2019 (Statement of Claim).

2. In late 1959, the marriage of the plaintiff's parents broke down.  He was placed into care with the defendant at the Home.  He was 12 years old at the time.  He was in the Home for a period of approximately eight months from August 1959 to April 1960.

3. Whilst at the Home, the plaintiff says he was sexually abused by Lt Swift.  Counsel for the plaintiff categorised this sexual abuse into four categories, which I will adopt.  First, Lt Swift regularly looked at the plaintiff when he and other children were in the showering block naked.[34]  Secondly, on multiple occasions commencing about four to six weeks after the plaintiff began residing at the Home, Lt Swift forced the plaintiff to stay behind in the recreation hall.  Escalating in severity of each occasion, the abuse started with Lt Swift placing his hand on the plaintiff's penis over his shorts and later under his shorts.[35]  It escalated to Lt Swift forcing the plaintiff to masturbate Lt Swift's exposed penis with his mouth.[36]  The last incident in the recreation hall occurred when Lt Swift anally raped the plaintiff.[37]  Thirdly, the plaintiff was ordered to sit next to Lt Swift whilst he was driving a truck, with the gear stick between his legs.  Lt Swift touched the plaintiff's genitals under the pretence of missing the gear stick whilst changing gears.[38]  Fourthly, Lt Swift anally raped the plaintiff in the boy's dormitory on two occasions.[39]  Consistently with the Statement of Claim, I will refer to these allegations as the 'Nedlands Sexual Assault and Abuse'.

   [34] Plaintiff's submissions, par 4; Plaintiff's Affidavit par 98.

   [35] Plaintiff's submissions, par 4; Plaintiff's Affidavit pars 79 - 85.

   [36] Plaintiff's Submissions, par 4; Plaintiff's Affidavit, pars 86 - 93.

   [37] Plaintiff's Submissions, par 4; Plaintiff's Affidavit, pars 94 - 97.

   [38] Plaintiff's Submissions par 4; Plaintiff's Affidavit, pars 76 - 78.

   [39] Plaintiff's Submissions par 4; Plaintiff's Affidavit, pars 99 - 111.

4. Significantly, the plaintiff says that some weeks before the end of his placement at the Home, immediately after being anally raped by Lt Swift, he reported the rape to a Major Watson, who ignored the plaintiff (the Major Watson Report).[40]  In the Plaintiff's Affidavit, he refers to a second report a few weeks later.[41]  Major Watson appears to have been the officer in charge of the Home.

   [40] Plaintiff's Affidavit, pars 113 - 117; Statement of Claim, par 4(e).

   [41] Plaintiff's Affidavit, pars 118 - 121.

1. The Statement of Claim sets out three causes of action against the defendant.

2. The first is in negligence.  The plaintiff pleads that at all material times the defendant, its servants or agents owed the plaintiff a common law non‑delegable duty of care to take reasonable care for the plaintiff to ensure that he was not exposed to unnecessary risk of injury in his capacity as a child during his placement at the Home, including injury as a result of Nedlands Sexual Assault and Abuse.[42]  The duty of care is said to arise in the context that during his placement, the plaintiff was in a position of extreme vulnerability to acts of sexual abuse perpetrated by servants or agents of the defendant.[43]  The case the defendant has to meet is set out in the particulars:[44]

   a.    The Defendant owed the Plaintiff a non-delegable duty to exercise reasonable care for the safety of the Plaintiff, which duty included the duty to institute and maintain a safe system of care to protect him from abuse, including sexual abuse, by members of the Salvation Army and any other person who attended at the Boy's Home.

   b.    The Defendant owed the plaintiff a duty to ensure that only staff suitable to foster the emotional and physical well-being of the plaintiff were charged with the care of the Plaintiff.

   c.    The Defendant was required to protect the Plaintiff from sexual assaults by teachers and/or people at the Boy's Home in positions of authority.

   d.    The Defendant owed a duty to the plaintiff to monitor and investigate the conduct of all staff at the Boy's Home to ensure the emotional and physical well-being of the Plaintiff.

   e.    The Defendant ought to have had systems in place at the Boy's Home for detecting incidents of sexual abuse perpetrated upon students such as the Plaintiff;

   f.     The Defendant ought to have developed, implemented or maintained a system for boys at the Boy's Home, including the Plaintiff, to immediately report incidents of misconduct (such as sexual assault) on the part of persons in authority and/or who were in charge of them, to a responsible officer at the Boy's Home; and in the case of criminal conduct, to the Police;

   g.    The Boy's Home ought to have developed, implemented or maintained a system of educating boys at the Boys Home , such as the Plaintiff, in relation to the risks of sexual assault or other misconduct by persons in authority and/or who were in charge of them, and the need to report such misconduct or attempted misconduct.

   [42] Statement of Claim, par 6.

   [43] Statement of Claim, par 5.

   [44] Statement of Claim, par 6.

3. The second cause of action is for breach of statutory duty said to arise as a result of the obligations imposed on the defendant pursuant to the Child Welfare Act 1947 (WA).[45]  In order to determine the Application, it is not necessary for me to review the basis for this cause of action.

   [45] Statement of Claim, pars 7, 8.

4. The plaintiff's case is that the defendant breached the common law duty of care and statutory duty and, in doing so, caused the Nedlands Sexual Assaults and Abuse suffered by the plaintiff.[46]  The particulars of breach are:[47]

   [46] Statement of Claim, par 9.

   [47] Statement of Claim, par 9.

   a.   The Defendant failed to protect the Plaintiff from [the Nedlands Sexual Assaults and Abuse];

   b.  The Defendant failed to detect, and failed to have any system in place for detecting, the sexual abuse which was perpetrated on the Plaintiff during the Boy's Home Placement;

   c.   The Defendant failed to develop, implement or maintain a system for students at the Boy's Home, including the Plaintiff to immediately report incidents of misconduct (such as sexual assault) on the part of persons in authority and/or who were in charge of them, to a responsible officer at the Boy's Home and/or the Department; and in the case of criminal conduct, to the Police;

   d.  The Defendant failed to develop, implement or maintain a system of educating residents at the Boy's Home, such as the Plaintiff, in relation to the risks of sexual assault or other misconduct by persons in authority and/or who were in charge of them, and the need to report such misconduct or attempted misconduct;

   e.   The Defendant failed to train staff to identify sexual abuse, predatory conduct by staff or any risk of sexual abuse from staff;

   f.   The Defendant failed to ensure that students such as the Plaintiff were aware that if they were assaulted and/or harassed and/or abused or even made uncomfortable by conduct of staff or those in authority, that such assault or abuse or harassment or conduct, should be reported to an appropriate representative of the Boy's Home and/or the Department, and duly acted upon;

   g.  The Defendant failed to screen and monitor staff for any indication of predatory or aberrant behaviour that might result in a risk of sexual abuse of residents;

   h.  The Defendant failed to require, and train, staff to express concerns about conduct or behaviour of other visitors or staff, which could present a risk to the safety or welfare of students;

   i.   The Defendant failed to act upon the [Major Watson Report].

5. The third cause of action is that the Nedlands Sexual Assault and Abuse perpetrated by Lt Swift was intended to and did inflict harm upon the plaintiff.[48]  The plaintiff's case is that the defendant is vicariously responsible for this intentional tort.[49]

   [48] Statement of Claim, par 10,

   [49] Statement of Claim, par 11(b).

6. The Statement of Claim then goes on to allege that as a result of these torts the plaintiff has suffered serious injury, loss and damage which is particularised.[50]  He also claims aggravated and exemplary damages.[51] 

   [50] Statement of Claim, pars 11 ‑ 15.

   [51] Statement of Claim, par 16.

7. It is evident from this review of the plaintiff's case that there are two primary factual issues which the defendant will have to meet at trial.  The first is whether the Nedlands Sexual Assault and Abuse took place as the plaintiff alleges.  The second is whether the plaintiff reported an incident of anal rape to Major Watson and, if so, what if anything he or others did in response to that disclosure.

8. There are then a number of issues which at a more institutional level the defendant will need to address in order to properly defend the action. I have set these out at [89].

1. The defendant's case

1. The defendant does not contest that:

   (a)it owned and operated the Home;[52]

   (b)Lt Swift was a Salvation Army Officer appointed to the Home;[53] and

   (c)Lt Swift was placed at the Home from 15 January 1959 to 6 September 1962.[54]

   [52] Defence filed 13 November 2019 (Defence), par 3(a).

   [53] Defence, par 3(b).

   [54] First Geary Affidavit, par 7.

2. For the purposes of determining the Application, it is sufficient to identify the following seven issues which are in dispute based on the defendant's defence filed 13 November 2019 (Defence).

3. The first is whether the plaintiff in fact resided at the Home as he alleges for approximately eight months from 1959 to 1960.  The defendant pleads that it searched for but does not possess any records concerning the plaintiff and, on that basis, does not know and cannot admit this allegation.[55]

   [55] Defence, par 4.

4. The second is whether the plaintiff was in fact sexually abused by Lt Swift as alleged.  It does not admit this allegation.  It further pleads that the allegations 'are not properly particularised in that they involve the alleged conduct of a deceased former officer of the defendant on unspecified occasions and as a result, the defendant does not know the case it is to meet at trial'.[56]

   [56] Defence, par 5.

5. The third is whether the plaintiff in fact told Major Watson that he had been raped by Lt Swift.  The defendant does not admit this allegation, again pleading that it has searched for but does not possess any records concerning the plaintiff or any reports made by the plaintiff.[57] 

   [57] Defence, par 6.

6. The fourth is the legal issue of the extent of the duty of care owed by the defendant directly to the plaintiff.  The defendant admits that it owed a duty of care to children residing at the Home.[58]  It says that this duty of care required the defendant to take such precautions as a reasonable person in its position would have taken, in accordance with the standards of the day, in response to risks of harm that were both foreseeable and not insignificant.  It denies that it breached any duty of care it owed to the plaintiff (whether as alleged or otherwise).[59]

   [58] Defence, par 7(c).

   [59] Defence, par 7.

7. The contentious issue is whether the scope of the duty of care is more specific as pleaded by the plaintiff.  That turns, factually, on issues like:

   (a)whether defendant had knowledge of that Lt Swift had sexually assaulted the plaintiff (asserted in the Major Watson Report); and

   (b)whether the defendant had knowledge that either Lt Swift or other officers were sexually assaulting other boys at the Home.

8. The defendant does not admit the existence of any statutory duty.[60]

   [60] Defence, pars 7, 8.

9. The fifth contentious issue is whether the defendant breached any duty of care it directly owed to the plaintiff.  It says it did not, on the basis that:[61]

   a.The defendant has searched for but does not possess any records concerning the plaintiff or any reports made by the plaintiff;

   b.The defendant does not know if the plaintiff was subjected to sexual assaults and abuse as alleged (none of which is admitted);

   c.They are not properly particularised in that they involve the alleged conduct of a deceased former officer of the defendant on unspecified occasions and as a result, the defendant does not know the case it is to meet at trial;

   d.The defendant had no knowledge of any predatory or aberrant behaviour regarding [Lt] Swift at any time prior to or during the relevant period; and

   e.The defendant otherwise says that it did supervise and control staff at the Home in a manner which accorded with the standards of the time at which the plaintiff says he was admitted to the Home.

   [61] Defence, par 10.

10. The sixth contentious issue is whether Lt Swift intended to and did inflict harm on the plaintiff, relevant to the pleading of an intentional tort.  Again, the defendant does not admit this allegation on the same basis as the breach of duty of care.[62]

    [62] Defence, par 11.

11. The seventh contentious issue is whether the defendant was vicariously liable for any intentional tort committed by Lt Swift.  The defendant denies this, and:[63]

    [63] Defence, par 13, also par 3(b).

    …

    b.Says that [Lt] Swift was an ordained minister of The Salvation Army, not an employee;

    c.Says that the plaintiff's allegations are not properly particularised in that they include allegations involving the alleged conduct of a deceased former officer of the defendant on unspecified occasions and as a result, the defendant does not know the case it is to meet at trial;

    d.Says that at all material times, the conduct alleged (which is not admitted) in the statement of claim as constituting the sexual assaults and sexual abuse:

    i.was not in accordance with the authorised role and responsibilities of [Lt] Swift;

    ii.was not carried out for the purpose for which the defendant appointed [Lt] Swift to provide services at the Home;

    iii.was so far removed from the role and responsibilities of [Lt] Swift at the Home, so as to be outside the course of his appointment by the defendant;

    iv.was not authorised by the defendant.

12. Causation and quantum are generally in issue, as is the claim for aggravated and/ or exemplary damages.[64]

    [64] Defence, pars 14 and 15.

1. Material no longer available to the defendant

6.1     Scope

1. The defendant identifies two broad areas in which it asserts that the delay has had the consequence that evidence is no longer available to it:  material witnesses are not available (section 6.2) and the documentary records which it has to date been found are limited and unhelpful (section 6.3).

2. The material which the defendant has sought to find is wider than what might ultimately be evidence.  This is because material which is not admissible in its own right as evidence may nonetheless provide material for cross‑examination of the plaintiff and other witnesses or suggest other lines of inquiry.

3. The plaintiff is critical of the extent of the inquiries carried out by the defendant (section 6.4).

6.2     Witnesses

1. Lt Swift died on 3 October 2006.[65]  This was some eight years before the defendant first became aware that the plaintiff alleged he had been sexually abused by Lt Swift, which was when police contacted it on 10 February 2014.[66]  It was not until 13 July 2018 that the specific allegations were first put by the plaintiff, through his solicitors, to the defendant.[67]  So the defendant did not have the opportunity to put the plaintiff's allegations to Lt Swift so as to obtain his version of events, if indeed he could recall anything of relevance.

   [65] First Geary Affidavit, par 6.

   [66] First Geary Affidavit, Attachment LG-6, page 81.

   [67] First Geary Affidavit, Attachment LG-7, page 85.

2. The person whom the defendant believed to be the Major Watson referred to by the plaintiff died on 20 August 1968.[68]  I say 'believed to be' as the plaintiff was not able to provide Major Watson's first name or title.[69]  So the defendant did not have the opportunity to put the plaintiff's allegations to Major Watson so as to obtain his version of events, again if indeed he could recall anything of relevance.  Specifically it did not have the opportunity to inquire whether Major Watson opened what is known as a 'Z' file with respect to Lt Swift. A 'Z file' is a type of Salvation Army file dealing with sensitive disciplinary matters.

   [68] First Geary Affidavit, par 43(a), also par 57.

   [69] Plaintiff's further and better particulars, dated 21 August 2019, answer 6.

3. Lt Swift was married to one Doris Swift from 4 March 1950.[70]  Mrs Swift died on 17 May 2019, though for the two or so years prior to that appears to have been in care suffering from significant memory issues.[71]

   [70] First Geary Affidavit, Attachment LG-25, page 430.

   [71] First Geary Affidavit, Attachment LG 57, pages 760 - 761; Attachment LG-54, page 741.

4. The two surviving children of Lt Swift which the defendant's solicitors were able to contact were not able to provide any substantive information which would have assisted the defendant to properly deal with the allegations made by the plaintiff.[72]

   [72] First Geary Affidavit, Attachment LG-58, pages 765 - 766; Attachment LG-59, pages 767 - 768.

5. Notwithstanding what I accept to be extensive inquiries, the defendant has not been able to identify any other officers who worked at the Home between 1959 and 1962 who are still alive and able to provide any relevant information.[73]

6.3     Documents

[73] First Geary Affidavit, pars 118, 122 - 123.

1. As to the documents, the contemporaneous documents the defendant has been able to obtain neither record allegations of sexual assault by Lt Swift against the plaintiff being brought to the attention of the defendant, nor the existence of any investigation by the defendant into Lt Swift.[74]

   [74] Defendant's Submissions, par 32; First Geary Affidavit, pars 125 - 127.

2. The defendant has conducted what it invites the court to find to be comprehensive, but ultimately unsuccessful, investigations since the service of the statement of claim in May 2019 until December 2020.  These included:

   (a)interrogating the records for the Home relating to the plaintiff, which were unsuccessful given the only records found were from periods from 1960 onwards, other than two admission cards for residents admitted in 1959, neither of which was for the plaintiff;[75]

   (b) interrogating the files of residents who were present at the Home during Lt Swift's and the plaintiff's time there, which identified 12 residents, but no evidence of complaints made about Lt Swift at the time, nor any current contact details,[76] and which records also appeared incomplete;[77]

   (c) seeking documents relating to the roles and responsibilities of Lt Swift at the Home,[78] which were unsuccessful;[79] and

   (d)reviewing internal files held in relation to Lt Swift,[80] including attempting to locate any 'Z file' for Lt Swift; there is no Z file for Lt Swift.[81]

   [75] First Geary Affidavit, Attachment LG-26, pages 553 - 554.

   [76] First Geary Affidavit, pars 78 - 79.

   [77] First Geary Affidavit, pars 82 - 85.

   [78] First Geary Affidavit, par 53(b).

   [79] First Geary Affidavit, pars 54 - 55: Attachment LG-20, pages 337 - 338.

   [80] First Geary Affidavit, par 72.

   [81] First Geary Affidavit, pars 114 - 115.

3. The defendant submits that, due to the passage of time, it has been denied the opportunity to meaningfully investigate whether there were documents relevant to the issues in the action.  It says that it has lost the opportunity to properly work out whether there were any relevant documents in the first place, including contemporaneous records of complaints made, and, if none existed, why that was so.[82]

6.4     Other inquiries

[82] Defendant's Reply Submissions, par 60.

1. The plaintiff is critical of the inquiries carried out by the defendant.

2. Ms Littlefair identifies three lines of inquiry which the plaintiff invites the court to find are outstanding.

3. The first area of concern relates to a subpoena addressed to the State Records Office.  This subpoena requested copies of documents relating to the Home between 1940 and 1994 and documents relating to the plaintiff being a resident of the Home between 1959 and 1960.[83]  Ms Littlefair observes that this subpoena does not request documents relating to Lt Swift and more particularly any allegations or complaints of abuse perpetrated by Lt Swift.[84]  The defendant responds that the subpoena was 'patently wide', that the date range requested more than adequately covered Lt Swift's time at the Home and that the fact that it did not expressly request documents relating to Lt Swift is irrelevant.[85]  I agree.  The subpoena was wide enough in its terms to catch any potentially relevant document which may have been in the possession of the State Records Office.

   [83] First Geary Affidavit, Attachment LG-10C, page 247.

   [84] First Littlefair Affidavit, par 113.

   [85] Defendant's Submissions, par 38(a).

4. The second and third relate to two former employees of the defendant, Trevor Walker and Commissioner Floyd Tidd.  Each did reports for the Salvation Army relating to matters of potential relevance in the Action.  It is convenient to deal with these issues in the context of the relevance of their reports more generally (see section 8.3 below).

1. Prejudice to the defendant

7.1     Dimensions of prejudice

1. Counsel for the defendant placed emphasis on three particular dimensions of prejudice, being the impossibility of the defendant to meaningfully:

   •Cross-examine the plaintiff (section 7.2).

   •Address the issue of its practices and procedures at the time, which is central to the issue of direct liability that is, breach of a non-delegable duty of care owed by it (section 7.3).

   •Address the issue of the formal role of Lt Swift verses what he actually did, which is central to the issue of vicarious liability (section 7.4).

2. The approach of the defendant recognises that in exercising the discretion as to whether or not to grant a stay I need to give separate consideration to the claim based on direct liability and the claim based on vicarious liability.[86]

7.2     Cross-examination

[86] Trinity Grammar [433] - [434].

1. The defendant submits that it is prejudiced as its inability to obtain evidence from any person present at the Home in or around the time of Lt Swift, or contemporaneous documentary records, renders it impossible to meaningfully cross‑examine the plaintiff.

2. At the outset the defendant submits that the variations between the plaintiff's account in his statement of claim, his affidavit opposing the Application and his redress application (in particular as to the frequency of the assaults) makes it harder for it to meaningfully defend the claim.  In this regard, counsel relied on the observation of the Victorian Court of Appeal in Connellan that the vagueness of the plaintiff's own recollection of surrounding circumstances made the investigation and defence of her allegations 'even more problematic'.[87]  I do not accept this submission.  The detail with which the plaintiff goes into the sexual abuse he says he suffered is very different from that of the plaintiff in Connellan.  To the extent that there are variations in his account in different documents, this is something which can readily be explored in cross-examination at any trial of the Action.

   [87] Connellan [57].

1. More generally, the defendant relies on the principles identified by McHugh J in Longman v R as to the fallibility of human recollection and the means by which that recollection can be challenged:[88]

   The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented.  The longer the period between an 'event' and its recall, the greater the margin for error.  Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling.  Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine.

   No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely.  The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred.  The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious.  Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be …

   To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence.  By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.

   [88] Longman v R [1989] HCA 60; (1989) 168 CLR 79, 107 - 108 (McHugh J).

2. Consequently, in criminal trials in this jurisdiction, juries are routinely given a direction of law which, among other things, draws their attention to the effect of delay on both the capacity to test the complainant's evidence and the opportunity of the accused to adequately marshal a positive defence.[89] 

   [89] See for example: YNT v The State of Western Australia [2021] WASCA 89 [121] ‑ [129] (judgment of the court); CAND v The State of Western Australia [2018] WASCA 101 [23] (judgment of the court).

3. In oral submissions, counsel for the defendant provided a stark example of risk to which the principle in Longman v R is directed:[90]

   … Now, your Honour, it is notorious in these cases, particularly after this length of delay, that people who have genuine recollections, honest recollections, of events are mistaken about important particulars of them.

   Sometimes, they are mistaken about the institution in which the abuse occurred, where plaintiff's have been in more than one institution.  Other times, they are mistaken about who the perpetrator of the abuse is.

   And it has happened to me, where a plaintiff has been adamant that it was Brother X who had abused him, and then, when confronted with objective records which indicated that Brother X was not at the school at that time, has identified another staff member as being the relevant staff member who abused him.

   The point is that we just don't have the capacity to be able to undertake that sort of inquiry in this case, because of the absence of relevant witnesses and because of the absence of relevant documents.

   [90] ts 16 - ts 17.

4. In Moubarak,[91] Grant,[92] and Ugle[93] the comments of McHugh J were seen to be apposite to an assessment of whether a defendant can receive a fair trial in a civil trial involving allegations of historic sexual abuse which are heavily dependent on oral evidence.

   [91] Moubarak [80] - [81].

   [92] Grant [51].

   [93] Ugle [50] - [51].

5. In Moubarak Bell P made observations about the impact of the inability of the defendant to give evidence.  In that case, the defendant was alive, but had dementia.  At no time prior to the onset of his dementia was the defendant ever confronted by the plaintiff or the police with the detail of the allegations.[94]  The President observed (the Ms Evans referred to was a friend of the plaintiff whom she said she told about the alleged assaults some 12 or so years later):[95]

   Whilst it is correct that a number of forensic steps would have been open to the defendant's tutor in defending the proceedings, such as cross‑examining the plaintiff, exploring potential inconsistencies in her accounts to the police, Ms Evans and her various doctors, cross‑examining Ms Evans if she were called by the plaintiff, and himself giving evidence (for what it would be worth) to the effect that the defendant had never mentioned the plaintiff to him, none of these matters, in my opinion, would make up for the fact that the defendant was, because of his mental condition, at all relevant times utterly in the dark about the allegations made against him and quite unable to give instructions in relation to them.  Nothing that a trial judge could do in the conduct of the trial could, in my opinion, relieve against these consequences …

   Notwithstanding the existence of his tutor and his tutor's ability to participate in the trial in the way I have described above, in substance, on the particular facts of this case, the trial would be taking place in the defendant's involuntary absence and that would, in my opinion, produce manifest unfairness to the defendant and bring the administration of justice into disrepute, notwithstanding that it would result in the unfortunate consequence of the plaintiff not being able to pursue her claim.

   [94] Moubarak [163] - [165].

   [95] Moubarak [158] - [159].

6. The defendant also relies on the following observation of Martin J in Chalmers v Leslie as being apposite to its position:[96]

   It was also suggested that this was a case where the plaintiff's evidence could be tested in cross-examination.  It might be the case that there is no challenge, on the pleadings, to the locations and times at which the plaintiff says he was abused by the first defendant.  But that is consistent with the evidence that the first defendant is incapable of giving instructions.  Nothing of any moment could be put to the plaintiff about the allegations because the first defendant cannot give any instructions.

   In that case, a permanent stay was granted in relation to a claim against the alleged perpetrator of sexual abuse who was suffering from severe dementia.

   [96] Chalmers v Leslie [2020] QSC 343 [32] (Martin J) (Chalmers).

7. The defendant submits that it is has lost the opportunity to:

   (a)obtain information from Lt Swift as to the allegations made, so that his version of events could be put to the plaintiff both in cross-examination and, if necessary, in examination‑in‑chief; and/ or

   (b)obtain information as to the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the plaintiff's testimony so as to test the reliability of the plaintiff's recollection of events.[97]

   [97] Connellan [57].

8. As to the potential specific information, the defendant submitted that:[98]

   However, even if Lt Swift were alive and were to deny the allegations, there may very well be other matters upon which Lt Swift could provide instructions that would enable the defendant to meaningfully defend the action.  In respect of sexual assault this might include whether he had an alibi for any of the alleged incidents and whether there are any facts suggesting an impossibility or improbability for the events to have occurred. In respect of vicarious liability this includes the role to which Lt Swift was appointed by the defendant, and the responsibilities given to him.  Any number of similar instructions, and evidence thereof, could also have been sought from Lt Swift's wife or his colleagues.  Those matters would have meant that the defendant could do more than test the plaintiff's account based on his recollection but could independently test it against facts put into evidence by Lt Swift, or his family or his colleagues.

   [98] Defendant's Reply Submissions, par 8.

9. The defendant also asserts that matters as to causation and quantum are unjustifiably oppressive for it to investigate and defend given the passage of time that has elapsed.[99]  In this regard the defendant in effect submits that the position in the Action is similar to that in Connellan where the court concluded:[100]

   In the present proceeding, the defendant is being asked to defend himself at the age of 62 for actions he is alleged to have committed as a 13 year old in respect of a person he can only have known (on the plaintiff's case) for little more than a week.  The burdensome and oppressive nature of that task is manifest.  The task is made more oppressive by the fact that, by reason of the substantial elapse of time, neither side is in a position to investigate (or call evidence about) relevant surrounding circumstances and events.  Further, the vagueness of the plaintiff's own recollection of surrounding circumstances makes the investigation and defence of her allegations even more problematic.

   It is not merely the difficulty associated with investigating and defending the plaintiff's allegations of sexual assault that makes this proceeding unjustifiably oppressive: there are also significant issues of causation and quantum, the investigation of which has been made more difficult by the substantial elapse of time.  The plaintiff's case is that she now suffers (and has suffered for many years) from a chronic post‑traumatic stress disorder.  The investigation of how and when this condition commenced and developed and its potential causes is now largely (if not wholly) precluded.  Large parts of the plaintiff's history upon which conclusions on the issues of causation and quantum might be founded will now be dependent upon little more than the plaintiff's assertions of her subjective recollection of events to which she now attributes importance.

   [99] Defendant's Submissions, par 30.

   [100] Connellan [57] - [58].

10. Difficulties of this kind are reflected in a report on the plaintiff prepared by Dr Mander, a psychiatrist, on the request of the defendant's lawyers.[101]

    [101] Second Littlefair Affidavit, Attachment RL-79, in particular pages 41 - 43.

11. As was observed by five members of the High Court in Prince Alfred College Inc v ADC:[102]

    It has rightly been said that the absence of witnesses which affects the ability of a party to mount a defence cannot readily be dismissed as a real forensic disadvantage because "what has been forgotten can rarely be shown".

    This issue is of course more acute when there is no opportunity to talk to the witness in the first place.

    [102] Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134 [101] (French CJ, Kiefel, Bell, Keane & Nettle JJ) (references omitted) (Prince Alfred). 

12. The defendant in effect submits that it will suffer a distinct forensic disadvantage by not having the raw material by way of instructions from Lt Swift, evidence from other witnesses and contemporaneous documents with which to test the testimony of the plaintiff in cross‑examination.

7.3     Direct liability

1. The second dimension of prejudice relates to the difficulties which the defendant will face in addressing issues relating to the scope of the non‑delegable duty of care which the plaintiff says he was owed by the defendant and whether, in all the circumstances, it was breached as the plaintiff alleges.

2. The difficulties faced in a defendant in meaningfully defending a claim based on a non-delegable duty of care arising from historic allegations were considered in Trinity Grammar.  In that case the respondent alleged he was sexually assaulted by a teacher, one Neil Futcher, between 1974 and 1975.  The respondent had first complained to police in 1997.  In 2004 lawyers on behalf of the respondent made a claim to the school (which I will refer to as 'Trinity') relating to the assaults and threatened to commence proceedings.  Trinity denied liability and raised a limitation issue.  The claim was not then pursued.  In 2016 criminal proceedings were commenced against Mr Futcher in respect of sexual assaults on the respondent and other persons.  He was convicted and sentenced to a lengthy term of imprisonment.  Also, in 2016 the time bar in respect of proceedings for damages arising out of child sexual assaults was abolished.  The respondent then commenced an action against Trinity.

3. The sexual assaults alleged in the statement of claim fell into four categories.  The first allegation of sexual assault pleaded was that Mr Futcher showed the respondent pornographic materials whilst transporting him from the Preparatory School to the Trinity's sportsground in 1974.  The second set of allegations concerned assaults which occurred at Mr Futcher's unit in Drummoyne during 1974 and 1975.  The third set of allegations concerned incidents which occurred when Mr Futcher picked up the respondent from Trinity in his van no earlier than 1975.  The fourth set of allegations pertained to assaults which were alleged to have occurred at organised school camps.

4. The headmaster at the time died in 1997, and his successor in 2016.  The master in charge of the preparatory school, a Reverend Sandars, died in 2012.  Trinity's inability to obtain instructions from them formed an important element in an application by Trinity for a permanent stay of proceedings.[103]  The stay was refused at first instance.  However, it was granted on appeal, Bathurst CJ delivering a judgment to which the other members of the court agreed.

   [103] Trinity Grammar [4].

5. The Chief Justice was critical of the approach of the primary judge in failing to give separate consideration to the claims based on non‑delegable duty and the claims based on vicarious liability.  His Honour's comments are apposite to the present application:[104]

   Although the pleading does to some extent conflate these issues, particularly in relation to breach, they are separate issues.  Put shortly, in the present case, Trinity would only be in breach of its non-delegable duty if, in fact, it failed to exercise reasonable care to protect the respondent from any reasonably perceived risk arising from Futcher's employment and his interaction with pupils, including the respondent.  This involves consideration of what inquiries were made prior to Futcher being employed by Trinity and, for example, the systems and procedures put in place to protect pupils from any reasonably perceived risk.  It would also involve the question of whether Trinity became aware during the course of Futcher's employment that Futcher or other teachers were abusing students and the steps put in place to prevent that occurring.  However, as senior counsel for Trinity pointed out, the breach of the non‑delegable duty does not arise solely from the fact of the criminal conduct constituting the sexual assault …

   By contrast, the claim for vicarious liability does not depend on a breach of the non-delegable duty but rather the role that Trinity assigned to Futcher and whether its performance may 'give the "occasion" for the wrongful act' Prince Alfred College at [81]. The inquiries relevant to a claim for vicarious liability, although potentially overlapping, raise different issues. The first inquiry looks to the wrongful acts or neglect of the school in determining whether the assaults were caused by the breach of the non-delegable duty. The second inquiry rather looks to the position the school placed the teacher and whether that gave the 'occasion' for the assault. The focus by the primary judge solely on vicarious liability and particularly the circumstances surrounding the camps, overlooks this distinction.

   [104] Trinity Grammar [433] - [434] (reference omitted).

6. I return to the issues relating to vicarious liability in section 7.4.

7. The Chief Justice analysed the prejudice based on each of the categories of sexual assault.  In relation to the first category, the factors going to the existence and breach of a non-delegable duty of care considered by the Chief Justice were:

   (a)the inability to obtain evidence from Reverend Sandars as to the knowledge Trinity had to the danger posed by Mr Futcher at or about the relevant time;[105]

   (b)the fact that Reverend Sandars had effective operational control over the preparatory school, and not the headmaster of the school;[106]

   (c)the fact that there was nothing to suggest that the school council had involvement in the matter or had any operational control over the preparatory school;[107] and

   (d)the fact no assistance could be obtained from other teachers.[108]

   [105] Trinity Grammar [450] - [ 454].

   [106] Trinity Grammar [452], [456] - [458].

   [107] Trinity Grammar [455].

   [108] Trinity Grammar [460] - [461].

8. The Chief Justice concluded:[109]

   In those circumstances, the ability to deal with the alleged breach of non‑delegable duty in respect of the first allegation of sexual assault is substantially, if not completely undermined, by the absence of the Reverend Sandars.  That can be shown by the examination of the particulars of breach of duty.  To the extent that they do not depend on the knowledge of the Reverend Sandars with which I have already dealt, they allege (excluding the allegations concerning camps) a failure to put in systems and procedures designed to protect students from abuse.  In the absence of any records from the time to show the existence or non‑existence of such procedures, the absence of the Reverend Sandars means that Trinity is unable to consider one way or the other what, if any, protections were in place and why at the time they were considered adequate.

   The Chief Justice was of the view that Trinity encountered similar difficulties in relation to the remaining categories.[110]

   [109] Trinity Grammar [459].

   [110] Trinity Grammar [462] - [463], [476].

9. Two other factors considered significant by the Chief Justice in concluding that it was appropriate to grant a stay were that:[111]

   (a)the inquiries made by Trinity were reasonable and demonstrated that notwithstanding those inquiries, Trinity could not meaningfully deal with the claim against it; and

   (b)Trinity's inability to deal with the proceedings was not due to its own neglect and default by not making inquiries when the allegations were first brought to its attention, when the claim was statute‑barred.

   [111] Trinity Grammar [490], [503] - [505].

10. The Chief Justice concluded that a permanent stay was appropriate:[112]

    In these circumstances, Trinty is in a position where it is unable to deal meaningfully with the claim and a continuation of the proceedings would be unfairly oppressive and burdensome to it in the sense described in Basistatosand Moubarak. A permanent stay should be granted.

    [112]   Trinity Grammar [506].

11. Returning to the present case, a specific difficultly the defendant will face is how to address the allegation that at some point in 1959 or 1960 the plaintiff told Major Watson that he had been sexually abused by Lt Swift.  As is evident from the passage in Trinity Grammar I have quoted above [82], if the defendant had this knowledge, it would be significant to the issue of a non-delegable duty of care.  However, Major Watson is long deceased.  Despite inquiries there is no information available to the defendant by which it can meaningfully consider, one way or the other, what information it as an organisation knew about any allegations of sexual misconduct by Lt Swift.

12. More generally, from the review of the plaintiff's case in pt 4, it is evident that in order to properly defend the action, the issues which the defendant will need to address include:

    (a)the systems it had in place at the Home at the time around 1959 and 1960 for detecting sexual abuse;

    (b)the systems it had in place at the Home around 1959 and 1960 for boys at the Home to report incidents of misconduct (such as sexual assault) on the part of persons in authority at the Home and, if necessary, to the police;

    (c)the systems it had in place at the Home around 1959 and 1960 to educate residents at the Home in relation to the risks of sexual assault or other misconduct by persons in authority, and the need to report such misconduct or attempted misconduct;

    (d)the efforts it made to train staff to identify sexual abuse, predatory conduct by staff or any risk of sexual abuse from staff;

    (e)the efforts it made to ensure that residents were aware that if they were assaulted, harassed, abused or even made uncomfortable by conduct of staff or those in authority, how to report that conduct;

    (f)the procedures which the defendant had in place to screen and monitor staff for any indication of predatory or aberrant behaviour that might result in a risk of sexual abuse of residents; and

    (g)the efforts it went to the require, and train, staff to express concerns about conduct or behaviour of other visitors or staff, which could present a risk to the safety or welfare of residents.

1. These issues are central to the determination of the scope of the non‑delegable duty of care (if any) which the defendant owed the plaintiff and whether, in all the circumstances, it was breached as the plaintiff alleges.

2. The defendant submits that the absence of witnesses who could give evidence about, and documents recording or evidencing, the practices and procedures at the Home in 1959 and 1960, means that, as in Trinity Grammar, it is unable to consider one way or the other what, if any, of these systems and procedures were in place, and what efforts it undertook,  and why at the time they were considered adequate.

7.4     Vicarious liability

1. The third dimension of prejudice which counsel for the defendant placed particular emphasis on is that the inability to obtain evidence from any person present at the Home in or around the time of Lt Swift, or relevant contemporaneous documents, renders it impossible for the defendant to obtain the type of evidence necessary to enable it to prove the matters necessary to engage with the High Court's analysis of vicarious liability in Prince Alfred.[113]

   [113] Defendant's Submissions, par 29.

2. There is, however, a preliminary issue.  As I have noted, the defendant does not admit that Lt Swift was its employee ([45]).  Rather, it says that he was an ordained minister of The Salvation Army, one assigned to the Home.  If the employment relationship is not proven, then the vicarious liability claim must fail because the presence of an employment relationship is a necessary intermediate step or foundation for vicarious liability.[114]  So it is of particular importance that the defendant have the opportunity to consider any documents recording or evidencing the precise basis on which Lt Swift was at the Home.

   [114] PCB v Geelong College [2021] VSC 633 [303] - [305] (O'Meara J).

3. In Prince Alfred it was not in issue that the respondent had been sexually abused in 1962 by one Dean Bain, an employee of the appellant (which I will refer to as PAC), and that he had been convicted of those assaults in 2007.  In 2008 the respondent commenced proceedings in the Supreme Court of South Australia against PAC.  He asserted both that PAC was both directly and vicariously responsible for the conduct of the housemaster.  The respondent required an extension of time under the relevant limitation legislation, however, this was dealt with at the same time as the trial of the action.  The judge at first instance dismissed the respondent's claims on the merits.  The trial judge further held that she would have refused an extension of time on the basis that the effluxion of time was so great that PAC would be prejudiced in its attempts to defend the action.  On appeal, the Full Court allowed the appeal on the basis that PAC was vicariously liable and  that an extension of time ought to have been granted (with one member of the court also upholding the claim based on direct liability).

4. All members of the High Court allowed the appeal on the basis that the Full Court erred in holding that the respondent should have been granted an extension of time under the limitation legislation.  The trial judge, having come to that decision, ought not to have determined the question of liability.  For the same reason, the High Court also could not determine the question of liability.[115]

   [115] Prince Alfred [8] - [10] (French CJ, Kiefel, Bell, Keane & Nettle JJ), [123], [128] (Gageler & Gordon JJ).

5. French CJ, Kiefel, Bell, Keane and Nettle JJ (whom I will refer to as the majority) considered the principles governing the liability of an employer for the intentional criminal act of an employee on the basis that those principles were relevant to the extension of time.[116]  The remaining members of the court, Gageler and Gordon JJ, did not consider it necessary to do so.[117]

   [116] Prince Alfred[10].

   [117] Prince Alfred [127] - [131].

6. By the time the proceedings were commenced in 2008 a number of persons who may have been witnesses in the proceedings had died.  They included the persons who had been the headmaster, the senior master and the school chaplain of the PAC in 1962.  The senior housemaster was ill and unable to give evidence.  The psychologist whom the respondent first consulted had destroyed his notes.[118]

   [118] Prince Alfred [24].

7. As to the scope of vicarious liability, the majority, after a detailed review of the relevant Australian, United Kingdom and Canadian authorities, distilled the following principles:[119]

   In cases of the kind here in question, the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability … [I]t is possible for a criminal offence to be an act for which the apparent performance of employment provides the occasion.  Conversely, the fact that employment affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability … [D]epending on the circumstances, a wrongful act for which employment provides an opportunity may yet be entirely unconnected with the employment.  Even so … the role given to the employee and the nature of the employee's responsibilities may justify the conclusion that the employment not only provided an opportunity but also was the occasion for the commission of the wrongful act.  By way of example, it may be sufficient to hold an employer vicariously liable for a criminal act committed by an employee where, in the commission of that act, the employee used or took advantage of the position in which the employment placed the employee vis-à-vis the victim.

   Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim.  In determining whether the apparent performance of such a role may be said to give the 'occasion' for the wrongful act, particular features may be taken into account.  They include authority, power, trust, control and the ability to achieve intimacy with the victim.  The latter feature may be especially important.  Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.

   [119] Prince Alfred [80] - [81].

8. And on the facts of the appeal:[120]

   In the present case, the appropriate enquiry is whether Bain's role as housemaster placed him in a position of power and intimacy vis-à-vis the respondent, such that Bain's apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment.  The relevant approach requires a careful examination of the role that the PAC actually assigned to housemasters and the position in which Bain was thereby placed vis-à-vis the respondent and the other children.

   [120] Prince Alfred [84].

9. The majority went on to make observations as to the impact of the loss of the absent witnesses:[121]

   It was said on the respondent's behalf that the absent witnesses were not critical and could not have given evidence on the vicarious liability issue which would have assisted the PAC's case; but it is difficult for a party to assert that the absence of witnesses who might have been expected to be able to give evidence on an issue is immaterial to the prospects of a fair trial of an issue where the absence of the witnesses is due to that party's delay.  As the primary judge herself observed … because of the dearth of evidence no conclusion could be drawn about Bain's role, a matter critical to the question of vicarious liability.  It could not be assumed that the position in which Bain was placed by his assigned role provided the "occasion" for the offending.  The evidence on the respondent's case was that no other housemaster was present in dormitories after lights out and that the prefects were given the role of supervising the boys after that time.  This raised a real question about what the role of housemaster entailed, a question which could not fairly be answered given the loss of relevant evidence.

   [121] Prince Alfred [102].

10. Counsel for the plaintiff submitted that the decision in Prince Alfred  is of limited assistance to the determination of the Application as it involved the extension of a limitation period (where the onus is on the plaintiff seeking the extension)[122] rather than the imposition of a permanent stay (where the onus is on the defendant who seeks to bring the action to an end).  Moreover, on the facts of the case, a significant factor was that the respondent in 1997 had made a deliberate decision to bring proceedings against Mr Bain and not PAC, and instead entered into an arrangement with PAC that was to resolve the issues between them.  But after a delay of some 11 years, the respondent changed his mind and commenced the action the subject of the appeal.

    [122] See generally: Prince Alfred [99].

11. However, the principles relating to vicarious liability outlined by the majority in Prince Alfred were applied by the New South Wales Court of Appeal on an application for a permanent stay in Trinity Grammar.[123]

    [123] Trinity Grammar [465] - [467] (Bathhurst CJ with whom Payne JA & Simpson AJA agreed).

12. I have set out above ([82]) the general principle distilled by the Chief Justice relying on Prince Alfred.  In relation to the first three allegations, his Honour concluded:[124]

    Although it may be accepted that Futcher was a teacher at the school and at least in that capacity had some association with the respondent in 1974, that does not seem, in my opinion, of itself to give rise to vicarious liability having regard to what was said in Prince Alfred College. To establish vicarious liability it will be necessary to determine whether Futcher was placed in a position of power and intimacy vis-à-vis the respondent which gave the occasion for the wrongful acts, such that they could be regarded as having been committed in the course of Futcher's employment: see Prince Alfred College at [84]-[85].

    If that is correct, the same difficulties arise in relation to the claim based on breach of the non-delegable duty.  Trinity, in the absence of the Reverend Sandars, is not in a position to ascertain one way or the other whether it acquiesced in or authorised Futcher to transport the respondent to sport, to pick him up to take him to the unit at Drummoyne or to pick him up in his van.  Trinity is unable to provide a meaningful response to the claim.

    [124] Trinity Grammar [465] - [466].

13. The Chief Justice came to a similar conclusion in relation to the fourth category, being assaults at camps:[125]

    This review of the material demonstrates, in my opinion, that Trinity is unable due to the effluxion of time, the unavailability of witnesses, particularly the Reverend Sandars and the absence of documentation concerning the attendance of pupils at the camp, to deal in any meaningful fashion with the critical question of whether Futcher was placed by Trinity in a position of power and intimacy which gave the occasion for the wrongful acts.

    [125] Trinity Grammar [475].

14. The defendant submits that the absence of witnesses and documents means that it is unable to consider one way or the other the precise role of Lt Swift at the Home or the scope of his duties there.  For example, there is no document which the defendant has been able to locate, or which the plaintiff has put forward, or any witness available to give evidence or instructions, as to whether or not Lt Swift had as one of his responsibilities supervision of boys showering.  The defendant is therefore not in a position to ascertain whether it acquiesced in or authorised the Lt Swift to engage in the activities in the course of which it was alleged that the assaults took place or whether it was something he did, in the language of some of the older cases, as a frolic of his own.

7.5     Summary

1. In summary, counsel for the defendant submitted that the present case is on all fours with a comment made by Bryson JA in Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos.[126] Speaking of the 29‑year delay which fell just short of the 30‑year limitation period applicable, his Honour said:[127]

   The Limitation Act 1969 cannot in my view close the Court's eyes to the practical inability of reaching a decision based on any real understanding of the facts, and the practical impossibility of giving the defendants any real opportunity to participate in the hearing, to contest them or, if it should be right to do so, to admit liability on an informed basis.  No more than a formal enactment of the process of hearing and determining the plaintiff's claim could take place; it cannot be expected that the process would be just.

   As Leeming JA pointed out in Moubarak,[128] the joint judgment of Gleeson CJ, Gummow, Hayne and Crennan JJ in the High Court described the concluding sentence of that passage as 'the critical holding by Bryson JA'[129] at and concluded at that there was no error of principle.[130]

   [126] Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos[2005] NSWCA 20 (Batistatos (CA)) (Bryson JA with whom Mason P & Giles JA agreed).

   [127] Batistatos (CA) [80].

   [128] Moubarak [192]. See also [85] - [86].

   [129] Batistatos [55].

   [130] Batistatos [72].

1. Plaintiff's response to the prejudice asserted by the defendant

8.1     Overview

1. The plaintiff's position is that any prejudice which the defendant may assert must be viewed in light of the evidence which is currently available (section 8.2) and which could be available on reasonable inquiry.  The possible additional evidence primarily relates to the evidence going to the knowledge, systems and procedures of the defendant at the time (section 8.3).  Specifically, counsel for the plaintiff submitted that there is substantial evidence warranting the case to proceed and for the defendant to participate in the trial and to be able to run a meaningful defence.

8.2     Evidence which is currently available

1. In the Plaintiff's Submissions, counsel sets out in some detail the evidence corroborating the plaintiff's evidence that he was a resident of the Home between August 1959 to April 1960, including from a relative of the plaintiff who was  at the Home at the same time as the plaintiff.[131]  In order to determine the Application, it is not necessary to set out this evidence in detail.  Rather, it is sufficient for me to find that there is information which has been disclosed in the material for the Application which if, led at trial, would corroborate the plaintiff's evidence that he was a resident of the Home between August 1959 to April 1960.

   [131] Plaintiff's Submissions, pars 13 ‑ 18; See generally: First Littlefair Affidavit, pars 5 - 19.

2. Counsel for the plaintiff also relies on the fact that '[e]xpert medical evidence confirms that [the plaintiff's] post-traumatic stress disorder and other psychiatric injuries has been caused by sexual abuse'.[132]  However, this does not assist the plaintiff.  The opinion of any expert is necessarily based on the facts provided by the plaintiff.  At best, their evidence can only be that:

   (a)on the symptoms described by the plaintiff, he suffers from post‑traumatic stress disorder and other psychiatric injuries; and

   (b)if the plaintiff was sexually abused as he alleges, this would have caused or materially contributed to the post‑traumatic stress disorder and other psychiatric injuries which he now suffers.

   Their evidence cannot prove that the plaintiff was sexually assaulted as he alleges.

   [132] Plaintiff's Submissions, par 33; See generally: Second Littlefair Affidavit.

3. Counsel for the plaintiff also relies on the fact that there is 'an abundance of evidence' from, at least, 10 male witnesses, other than the plaintiff who experienced sexual abuse by Lt Swift, when they were children resident at the Home or Salvation Army homes at Bayswater or Box Hill in Victoria.[133]  Those similarities are:[134]

   (a)other witnesses have stated that Lt Swift hugged them or cuddled them;

   (b)several witnesses have stated that Lt Swift touched their penis or masturbated them;

   (c)several witnesses have stated that the sexual abuse perpetrated by Lt Swift included performing (or attempting to perform) oral sex on him;

   (d)several witnesses have stated that Lt Swift forced them to masturbate him or watch him masturbate himself;

   (e)other witnesses have stated that Lt Swift attempted to anally rape them, or did anally rape them;

   (f)several witnesses have stated that they were sexually abused by Lt Swift in their dormitory; and

   (g)other witnesses have stated that Lt Swift said words to the effect that they were not allowed to tell anyone about the abuse.

   [133] Plaintiff's Submissions, par 34.

   [134] Plaintiff's Submissions, par 34.  The submissions set out the name of the other witness, cross-referenced to the First Littlefair Affidavit.  However, for the purposes of determining the Application, it is not necessary for me to identify any of these witnesses; See also, First Geary Affidavit, par 95.

4. The defendant's response is that the fact that other persons have made allegations against Lt Swift is of no assistance in determining whether the plaintiff was sexually abused as he alleges.  Of the 10 complainants identified, only one complaint was notified to the Salvation Army prior to Lt Swift's death, and that one related to a home in Victoria, and appears to have been reported at a time by which Lt Swift had dementia.[135]  So it is not the case that there is any, let alone extensive, evidence of contemporaneous reporting of incidents involving Lt Swift in the period 1959 to 1960.  Further, the reliance on these allegations only exacerbates the prejudice as it is more evidence on which the defendant is unable to obtain instructions.[136]  In this regard, in the Second Geary Affidavit, Mr Geary identifies an absence of records in relation to the other complainants referred to in the First Littlefair Affidavit.[137]

   [135] Defendant's Submissions, par 35, including references to the affidavit material supporting these conclusions.

   [136] Chalmers [31] (Martin J); GMB [139].

   [137] Second Geary Affidavit, pars 9 - 10.

5. I accept that there is information which has been disclosed in the material for the Application which if, led at trial, might be admissible as similar fact evidence.[138]  It could, for example, be used to test and/or confirm the truthfulness of the plaintiff's account thus corroborating his evidence.[139]  However, this evidence is relevant only to the issue of whether Lt Swift sexually assaulted the plaintiff as he alleged.

   [138] Chalmers [31]. As to the principles for the admission of similar fact evidence in civil cases, see generally: Ailakis v Olivero [No 2] [2014] WASCA 127 [62] (Martin CJ, with whom Buss & Murphy JJA agreed); Gething, M, Propensity Evidence in Civil Trials (1993) 10 Aust Bar Rev 203.

   [139] Grant [30] (Keogh J).

1. Counsel for the plaintiff submitted that there is ample material on which to test the evidence of the plaintiff in cross-examination:[140]

   It is a fallacy that The Salvation Army will face difficulties in defending the proceeding because of the lapse of time that has passed since the allegations occurred, and the death of [Lt] Swift.  [The plaintiff], and other witnesses who were abused by [Lt] Swift, are in reasonably good health and are able to be cross-examined and challenged on their account of the events and circumstances as well as in relation to their credibility Histories provided by [the plaintiff] to medical practitioners, police statements and accounts told to other witnesses can be examined and challenged.

   [140] Plaintiff's Submissions, par 39 (references omitted), also [48] - [51].

1. Counsel then submits that if it can be established that Lt Swift sexually abused the plaintiff while he was a child, then the corollary is that Lt Swift intended to inflict harm on the plaintiff.[141]  Given that Lt Swift's intention can be proven by inference,[142] this line of reasoning would be open to the trial judge.

   [141] Plaintiff's Submissions, par 35.

   [142] See for example: Webb v Tang [2021] WASC 344 [164] (Quinlan CJ).

2. On the issue of whether the defendant is vicariously liable for the acts of Lt Swift, counsel for the plaintiff submits that there is ample evidence of the role that the Salvation Army assigned to Lt Swift.  As I have indicated, it is not in issue that Lt Swift was a Salvation Army Officer appointed to the Home and that he was placed at the Home from 15 January 1959 to 6 September 1962.  The information which has been disclosed in the material for the Application, which if led at trial would go to the role assigned to Lt Swift, comes from not only the plaintiff, but other identified witnesses who were resident in the Home as children.[143]

   [143] Plaintiff's Submissions, par 23; See generally: First Littlefair Affidavit, pars 20 - 24.

3. The plaintiff's submissions conclude with the statement that '[p]ut simply as confirmed by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) the role of an officer working in a Salvation Army home was to care for the children who resided there'.[144]  However, I do not regard this finding by the Royal Commission as being of any assistance to the determination of the Application.  The trial judge would be required to make a finding on the specific evidence led at trial.

   [144] Plaintiff's Submissions, par 24.

4. I accept that there is information which has been disclosed in the material for the Application which if, led at trial, would go to the role which Lt Swift in fact undertook at the Home during the period August 1959 to April 1960.

8.3     Evidence as to systems and procedures

1. Counsel for the plaintiff then submits that there is substantial evidence that the Salvation Army lacked systems and procedures to protect children from abuse.  This evidence appears to come from three main sources.

2. The first is that the plaintiff submits that 'in many instances, when children complained about sexual abuse to persons of authority in the [Home], their complaints were dismissed immediately without investigation or consideration'.[145] In support of this, the Plaintiff's Submissions refer to the Major Watson Complaint, that is, by the plaintiff.  Another example is given by a boy who was at the Home in 1960 or 1961 who complained about Lt Swift to Major Watson.  However, this is a complaint of a physical assault.[146]  There is no other potential witness identified in the First Littlefair Affidavit who says that they made a contemporaneous complaint about conduct by Lt Swift of a sexual nature.  So this submission on behalf of the plaintiff overstates the evidence.  Moreover, any evidence of a complaint after the plaintiff left the Home or in relation to Lt Swift's later time at Box Hill or Bayswater is not relevant to the issues of the defendant's corporate knowledge at the time of the alleged abuse against the plaintiff.  Nor is there potential evidence that, prior to 1960, other boys at the Home who say they were abused by other Salvation Army officers ever made a contemporaneous complaint.[147]

   [145] Plaintiff's Submissions, par 27.

   [146] Plaintiff's Submissions, par 27; First Littlefair Affidavit, pars 31 ‑ 33.

   [147] First Littlefair Affidavit, pars 86 - 108.

3. The second is the Royal Commission.  The Plaintiff's Submissions tell me that the 'Royal Commission heard, and accepted, evidence, that between 1940 and 1990, The Salvation Army did not have any specific policies or procedures for responding to complaints of sexual abuse in any of the homes it operated'.[148]  The submissions go on:

   The Royal Commission did not received any evidence of The Salvation Army: (a) having any system in place for detecting sexual abuse; (b) developing, implementing or maintaining a system of educating residents at the Boys' Home in relation to the risks of sexual assault; (c) training staff to identify sexual abuse; and (d) screening or monitoring staff for any indication of predatory or aberrant behaviour that might result in a risk of sexual abuse.  In relation to these matters, the absence of any documentary records to show the existence of such systems or procedures does not reflect that there were such systems or procedures, and that the documentary evidence is now lost.  Rather, it is more likely the case that no such documentation ever existed because of the non‑existence of such systems or procedures.

   [148] Plaintiff's Submissions, par 26.

4. However, a finding by the Royal Commission is not, of itself, evidence which could be led at the Trial of the action.  The plaintiff would have to lead sufficient admissible evidence from which the court could make the findings which are identified in its particulars of breach (set out at [30]).

5. The third main source is a report by one Trevor Walker.  Mr Walker was the Director of Territorial Professional Standards Australia South Territory Unit for the Salvation Army between April 2014 and December 2018.  He was involved in settlement of claims for two victims of Lt Swift on behalf of the Salvation Army.[149]

   [149] First Littlefair Affidavit, pars 43, 115, 120.

6. In 2015 Mr Walker prepared a report for the Royal Commission regarding child sexual abuse for the Salvation Army, Australia South Territory, a copy of which is annexed to the First Littlefair Affidavit.[150]  The Plaintiff relied on Mr Walker's conclusions that:[151]

   a.The Salvation Army did fail to implement, and failed to adequately implement, policies, practices and procedures to protect children from child sexual abuse.  This failure was systemic.

   b.The Salvation Army did fail to identify situations in which children were at risk of being victims of child sexual abuse.  This failure was systemic.

   c.The Salvation Army did fail to fully explore and investigate claims of child sexual abuse.  This failure was both systemic and cultural.

   d.The Salvation Army did fail to appropriately respond to claims of child sexual abuse, having specific regard to the needs, or possible needs, of the victim and the victim's friends and family. This failure was both systemic and cultural.

   e.The Salvation Army did fail to make provision in its organisational structure for an appropriately qualified and experienced person, or persons, to deal with claims of child sexual abuse.  This failure was systemic.

   f.The Salvation Army did not take steps to protect alleged perpetrators of child sexual abuse.

   [150] First Littlefair Affidavit, pars 116 - 118, Attachment RL-70. 

   [151] Plaintiff’s Submissions, par 31, referring to First Littlefair Affidavit, par 118, Attachment RL‑70, page 651.

7. However, as with the findings of the Royal Commission, the findings by Mr Walker are not evidence which could be led at the Trial of the action.  There is no basis on which it could be said that these findings are admissions against interest by the defendant as regards the specific claim made by the plaintiff.  Again, the plaintiff would have to lead sufficient evidence from which the court could make the findings which are identified in its particulars of breach (set out at [30]).

8. The plaintiff is also critical of the defendant for not engaging with Mr Walker about the claims against Lt Swift he was involved with.[152]

   [152] First Littlefair Affidavit, pars 119 - 121.

9. The defendant has now addressed this with the Second Geary Affidavit telling me that an approach has been made to Mr Walker, who cannot usefully provide any information other than that which is already before the court.[153]

   [153] Second Geary Affidavit, par 36.

10. Counsel for the plaintiff is also critical that further inquiries were not made of Commissioner Tidd.  Commissioner Tidd was, at the relevant time, the Territorial Commander for the former Salvation Army Australia Southern Territory.[154]

    [154] See generally: Second Geary Affidavit, pars 37 - 40.

11. The defendant responds that Commissioner Tidd provided comprehensive statement to the Royal Commission, which is annexed to the First Geary Affidavit.[155]  This statement was reviewed in detail by the defendant, following which further searches were done.[156]

    [155] First Geary Affidavit, Attachment RL-27.

    [156] Geary Affidavit, par 34, and (generally) pars 37 ‑ 70.

12. In any event, the defendant has again addressed this concern with the Second Geary Affidavit telling me that an approach has been made to Commissioner Tidd, who cannot usefully provide any information other than that which is already before the court.[157]

    [157] Second Geary Affidavit, par 40.

1. Balancing the competing risks of unfairness

1. As set out at [18] the question is whether the defendant can meaningfully defend the Action or whether it would be unjustifiably oppressive to require the defendant to meet the case brought by the plaintiff.

2. The balancing exercise the court is required to undertake was described by Emmett AJA in Moubarak in the following terms:[158]

   The notion of a fair trial involves a balancing exercise in so far as it is necessary to assess whether the unfairness to a moving party by reason of a stay outweighs the unfairness to a defending party by reason of the continuation of the proceedings.  The question is whether the unfairness to the appellant outweighs the unfairness to the respondent in being deprived of the opportunity of compensation if she is able to establish that the alleged assaults occurred.  In that regard it is significant that one of the factors that resulted in unfairness to the appellant is the delay since the occurrence of the alleged assaults.  Even assuming that there is a perfectly good explanation for the respondent's delay, the delay has had that effect.  That is a consideration in weighing the balance.

   …

   The relevant balancing exercise is between the unfairness to the present appellant, if the Proceedings were to go to trial, and the unfairness to the respondent in losing the opportunity of compensation, if the Proceedings are stayed. 

   [158] Moubarak [205], [206].

3. The starting point in the balancing exercise is the statutory context.  Counsel for the plaintiff submitted that any prejudice suffered must be viewed in the light of the objectives of the amendments to the LA which allowed the plaintiff to commence his action notwithstanding how long ago the  abuse is said to have occurred.  I agree.

4. I recognise at the outset that there are strong public interest factors in permitting claims for damages for sexual abuse of children to be brought at any time.  Those public interest factors underpinned the removal of the limitation period by the legislature and the decision to give it retrospective effect.[159]  I endorse the observations of the former Chief Judge in ZXY that the 'removal of the time limit for child sexual abuse claims recognises the unique inhibitors that exist for people who are the victims of child sexual abuse from coming forward with a complaint'.[160] 

   [159] Ugle [38] - [40]; ZYX [58]. See generally: Moubarak [33] - [38].

   [160] ZYX [58].

5. I also endorse the observations of Shepherd DCJ in Ugle that:[161]

   The courts have reflected the strong public interest in claimants having the opportunity to present their allegations in court and there may well be a significant therapeutic benefit and a sense of closure for claimants concerned in such cases which of itself can be in the public interest.

   [161] Ugle [41].

6. The public interest in permitting claims for damages for child sexual abuse to be brought at any time, as reflected in the amendments to the LA, is an important factor to be weighed in favour of the plaintiff in the exercise of the court's discretion.[162]

   [162] Estate Judd v McKnight [No 4] [2018] NSWSC 1489 [134] - [135] (Garling J).

7. The fact that the plaintiff's claim was until very recently statute barred means that this is not a case in which the plaintiff can be criticised for the delay.[163]  I respectfully adopt the observations of Bell P in Moubarak.[164]

   The absence of a limitation period for a particular type of claim also means that a plaintiff with such a claim will generally not be able to be criticised for any delay in bringing such a claim (at least where it is not credibly suggested that the delay was deliberate or in some way colourable).  Because a claim is not precluded, either absolutely or contingently, by a limitation period or a limitation period subject to discretionary extension, no occasion arises for an explanation for any delay.

   To the extent that 'delay' connotes a measure of culpability, the use of that term is inapt in circumstances where the legislature has removed any limitation period within which proceedings of a particular kind may be brought.  As explained below, however, 'delay', when used in an objective or non-value laden sense to denote the passage of time between a particular event or events and the commencement of proceedings, has continuing potential significance even where a limitation period has been removed by the legislature.

   [163] Moubarak [75].

   [164] Moubarak [75] - [76].

8. With one minor exception, counsel for the defendant did not suggest that there was any culpable delay on the part of the plaintiff.  The exception was that, given that there was some awareness that the limitation period would be removed before that occurred (in July 2018), had the plaintiff (through his solicitors) advised the defendant of a potential claim, the defendant could have made inquiries of Mrs Swift before she went into care (in around 2017).[165]  I do not place any weight on the line of reasoning as it is too tenuous.

   [165] ts 21.

9. Rather, as I have already observed, delay in commencing proceedings by itself will not normally justify a stay.[166]  Nor will the fact that not all relevant evidence will be before the court at the trial of the action.[167]

   [166] GMB [128]; Ugle [27]; ZYX [46].

   [167] ZYX [51].

10. I also recognise that sexual assaults typically occur in private.  They are not dependant on documentary evidence to prove the allegations.[168]  Even where the sexual abuse is alleged to have occurred very close in time to a complaint being made, it is not uncommon (at least in my experience in the criminal jurisdiction) for there to be no documentary evidence in existence that would bear upon the likelihood or otherwise of the alleged sexual assaults having occurred.  So the absence of such documentary evidence is of little weight in the balancing exercise.

    [168] Ugle [237].

11. Adopting the approach of Bathurst CJ in Trinity Grammar, I assume for the purposes of determining the Application that the plaintiff is in a position to produce evidence to support the case pleaded and particularised.[169]  Beyond that, the fact that there is evidence which appears to corroborate the plaintiff's version of events (as set out at [108], [110] ‑ [112]) does not weigh significantly against the grant of a stay.  This is because it would be open to a trial judge on the pleadings to find that the plaintiff was subject to the sexual abuse which he alleges, and sustained the injury, loss and damage he asserts, but to hold that the defendant was neither directly or vicariously liable for that injury, loss and damage.  As the decision in Trinity Grammar illustrates, even when the underlying sexual assaults are not in dispute, the circumstances may still justify a permanent stay.  Rather, the focus is on whether the defendant can meaningfully defend the Action.

    [169] Trinity Grammar [446].

12. The fact Lt Swift died well before the defendant was first made aware of the plaintiff's allegations is a significant factor in favour of a stay.  The fact that the alleged perpetrator of the abuse died (or became medically unable to respond) before he or she could be confronted with the plaintiff's allegations was a significant factor in favour of the grant of a stay in Moubarak,[170] Ward v Trustees of the Roman Catholic Church for the Diocese of Lismore,[171] Chalmers,[172] and GMB.[173]  The absence of prejudice of this kind was a significant factor against the grant of a stay in ZYX [174] and Ugle.[175]  Nor is this a case like WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) where a factor against the grant of a stay was that, even though the alleged perpetrator had died, the defendant had an opportunity to, and did, investigate the allegations made by against the perpetrator while he was still alive, with there being a likelihood that further relevant evidence would be discovered on reasonable inquiry.[176]

    [170] Moubarak [163] - [169].

    [171] Ward v Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776 [22] (Beech-Jones J).

    [172] Chalmers [12] ‑ [13], [25].

    [173] GMB [142] - [144].

    [174] ZYX [58].

    [175] Ugle[205] (where there was insufficient evidence to persuade the court that the defendant suffered from a cognitive impairment).

    [176] WCB v Roman Catholic Corporation for the Diocese of Sale (No 2) [2020] VSC 639 [93], [208] - [212] (Keogh J) (WCB).

13. From the analysis set out at in section 6.2, I am also satisfied all other relevant witnesses who could be called from the defendant's perspective are deceased. This was a factor in favour of the grant of a stay in Trinity Grammar,[177] Moubarak[178] and Connellan.[179]  The absence of prejudice of this kind went against the grant of a stay in Ugle.[180]

    [177] Trinity Grammar [459], [462], [463], [466], [476].

    [178] Moubarak [163] - [171]. See also [188], [196].

    [179] Connellan [65].

    [180] Ugle [217], [240].

14. From the analysis set out at section 6.3, I am also satisfied that, due to the passage of time, the defendant has been denied the opportunity to meaningfully investigate whether there were documents relevant to the issues in the action.  This is in contrast to the position in ZYX where a stay was refused.[181]

    [181] ZYX [58].

15. Further, from the analysis in section 6.3 and at [126] and [129], I am further satisfied that there are no other meaningful inquiries which the defendant can make either to ascertain potential witnesses or obtain contemporaneous documents.  This was a factor in favour of the grant of a stay in GMB.[182]

    [182] GMB [145] - [147].

16. These are all factors in favour of the grant of a stay.  However, of more significance is the forensic disadvantage which the defendant will suffer from the absence of witnesses and documents.  This is threefold.

17. The first is that on the analysis set out in section 7.2, I accept the defendant's submission that it will suffer a distinct forensic disadvantage by not having any raw material by way of instructions from Lt Swift, evidence from other witnesses and documents with which to test the testimony of the plaintiff in cross-examination.  The material identified by the plaintiff as being available for use in cross‑examination (set out at [113]), does not make up for the absence of the material identified by the defendant.  Prejudice to this effect was a factor in favour of a grant of a stay in Moubarak,[183] Chalmers,[184]  Grant,[185] GMB.[186]  The absence of this prejudice was a factor against the grant of a stay in Ugle.[187]

    [183] Moubarak [163] - [171].

    [184] Chalmers [32].

    [185] Grant [50], [55].

    [186] GMB [145].

    [187] Ugle [217].

18. The second is that on the analysis set out in section 7.3, I accept the defendant's submission that the absence of witnesses who could give evidence about, and documents recording or evidencing, the practices and procedures at the Home in 1959 and 1960, means that the defendant is unable to consider one way or the other what, if any, systems and procedures were in place, and what efforts it undertook, and why at the time they were considered adequate.  As set out at [121] and [124], the findings by Royal Commission and Mr Walker are not directly admissible and, in any event, do not make up for the absence of the material identified by the defendant.  Prejudice to this effect was a factor in favour of a grant of a stay in Trinity Grammar.[188]

    [188] Trinity Grammar [459], [462], [463], [476].

1. The third is that on the analysis set on in section 7.4, I accept the defendant's submission that the absence of witnesses and documents means that it is unable to consider one way or the other the precise role of Lt Swift at the Home or the scope of his duties there, if indeed he was actually an employee.  Again, the material identified by the plaintiff going to this issue (set out at [115]), does not make up for the absence of the material identified by the defendant.  Moreover, the material does not address the issue of whether there was a divergence between the duties Lt Swift was formally assigned and what he in fact did in practice.  I accept that the defendant is not in a position to ascertain whether it acquiesced in or authorised Lt Swift to engage in the activities in the course of which it was alleged that the assaults took place.  Prejudice to this effect was a factor in favour of a grant of a stay in Trinity Grammar[189] and Grant.[190]  The absence of this prejudice was a factor against the grant of a stay in WCB.[191]

   [189] Trinity Grammar [466], [475].

   [190] Grant [50], [55].

   [191] WCB [88] - [94].

2. In summary, as the defendant has no contemporaneous material of any kind from its perspective to enable it to evaluate the plaintiff's claim, it is not in a position to determine whether or not to admit or deny any relevant fact on any informed basis.  It cannot therefore meaningfully defend the Action.[192]

   [192] Ward [28].

3. The clear balance of the factors compels the conclusion that this is a case in which the exceptional step should be taken to grant a permanent stay.  The defendant has satisfied the heavy onus on it to persuade the court that, in light of the matters raised, it is in the position where is it unable to meaningfully defend the Action and that it would be unjustifiably oppressive to require the defendant to meet the case brought against it by the plaintiff.  This unfairness to the defendant outweighs the unfairness to the plaintiff in losing the opportunity to seek vindication and compensation of the proceedings are stayed.

4. More generally in the words of the majority in Prince Alfred:[193]

   Where a trial is conducted long after the events which gave rise to the dispute, the risk that the trial will be a mere simulacrum of the process of doing justice becomes greater with the passage of time.

   In this case, with the passage of over 60 years since the events in issue occurred, this risk has eventuated.  A fair trial is not possible.  A permanent stay should be granted.

   [193] Prince Alfred [105].

5. I will hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

SVH

Associate

30 NOVEMBER 2021