JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RC -v- THE SALVATION ARMY (WESTERN AUSTRALIA) PROPERTY TRUST [2023] WASCA 29
CORAM: MURPHY JA
VAUGHAN JA
BLEBY AJA
HEARD: 13 SEPTEMBER 2022
DELIVERED : 17 FEBRUARY 2023
FILE NO/S: CACV 116 of 2021
BETWEEN: RC
Appellant
AND
THE SALVATION ARMY (WESTERN AUSTRALIA) PROPERTY TRUST
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
File Number : CIV 4329 of 2018
Catchwords:
Practice and procedure - Application for permanent stay of proceedings - Claim for damages for child sexual abuse - Whether alleged perpetrator died before respondent on notice of appellant's allegations - Whether passage of time resulted in significant prejudice to respondent - Whether defendant can meaningfully defend action - Whether failure to take into account material considerations
Costs - Where primary judge exercised discretion to make no order as to costs - Whether circumstances justify no order as to costs
Legislation:
Limitation Act 2005 (WA), s 6A
Result:
Appeal dismissed
Cross‑appeal allowed in part
Representation:
Counsel:
| Appellant | : | M D Cuerden SC & T J Hammond & L D Coci |
| Respondent | : | D Villa SC & R Young |
Solicitors:
| Appellant | : | Bradley Bayly Legal (Perth) |
| Respondent | : | Mills Oakley |
Case(s) referred to in decision(s):
Belgravia Nominees Pty Ltd v Lowe Pty Ltd (No 6) [2019] WASC 5
Blackett v Barnett [2017] NSWSC 1032
Chalmers v Leslie [2020] QSC 343; (2020) 6 QR 547
Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd [1031] HCA 53; (1931) 46 CLR 41
Connellan v Murphy [2017] VSCA 116
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404
DP (a pseudonym) v Bird [2021] VSC 850
GMB v UnitingCare West [2020] WADC 165
GMB v UnitingCare West [2022] WASCA 92
Gray v Sirtex Medical Ltd [2009] WASC 126
Hollis v Vabu [2001] HCA 44; (2001) 207 CLR 21
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Marchese v Marchese [2021] WASC 385
Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Monteleone v The Owners of the Old Soap Factory[2007] WASCA 79
Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218
New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511
O'Connor v Comensoli [2022] VSC 313
O'Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) (1995) 55 FCR 591
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) 83 ALJR 717
RC v The Salvation Army (Western Australia) Property Trust [2021] WADC 117
Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S)
Roman Catholic Trusts Corporation for the Diocese of Sale v WCB [2020] VSCA 328; (2020) 62 VR 234
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161
The Council of Trinity Grammar School v Anderson [2019] NSWCA 292; (2019) 101 NSWLR 762
The State of Western Australia v Collard [2015] WASCA 86
The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776
Wilson v Metaxas [1989] WAR 285
Table of Contents
Background
Overview
The pleadings
The appellant's statement of claim
The defence
The primary judge's decision to grant a permanent stay of the action
The evidence
The applicable principles
The primary judge's determination of the application
The availability of witnesses
Documentary evidence
Forensic disadvantage
The appeal
Grounds of appeal
Whether error to find that the respondent was not aware of or did not have an opportunity to investigate the appellant's allegations until after Lt Swift had died (Ground 1)
Whether the judge erred in failing to consider whether the respondent would have investigated the appellant's allegations earlier and, if so, when, had it been aware of them; and
Whether the respondent would have investigated the allegations, had it known of them, such that the delay resulted in significant prejudice (Ground 2)
The appellant's arguments on appeal
The appellant's arguments before the primary judge
Analysis
Whether error to conclude that with the passage of time the respondent was prejudiced through the loss of documents and the ability to call witnesses such as to warrant the grant of a permanent stay (Ground 3)
The issues of whether the abuse occurred and direct liability
The issue of vicarious liability
Conclusion on Ground 3
Whether the primary judge erred by failing to have any regard to the statement of Commissioner Tidd (Ground 4)
Conclusion on the appeal
The cross-appeal
JUDGMENT OF THE COURT:
On 15 November 2018, the appellant 'RC' commenced an action in the District Court against the respondent. The gravamen of the claim was that in 1959 and 1960, an officer of the respondent, Lieutenant Frank Swift, sexually abused him while he was placed in the Nedlands Boys' Home. The appellant claimed damages for breaches of common law and statutory duties by the respondent, and damages for intentional tort on the part of Lt Swift in respect of which the appellant claimed that the respondent was vicariously liable.
This action followed the introduction of s 6A of the Limitation Act 2005 (WA) which came into force on 1 July 2018. Section 6A(2) of that Act provides, '[d]espite anything in this or any other Act, no limitation period applies in respect of a child sexual abuse action'. The claim brought by the appellant is a child sexual abuse action within the meaning of that section.
On 25 May 2021, the respondent filed an application for a permanent stay of the action, effectively on the grounds of abuse of process. On 1 December 2021, a judge of the District Court made an order permanently staying the action.[1] The appellant seeks leave to appeal,[2] and to appeal against, that decision.
[1] RC v The Salvation Army (Western Australia) Property Trust [2021] WADC 117 (primary reasons).
[2] Leave being required as the order for a permanent stay was an interlocutory order. See Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315 [117] - [118].
The respondent has cross‑appealed, challenging the primary judge's exercise of the discretion to make no order as to the costs of the application and the action. The cross‑appeal also requires leave.
For the reasons which follow:
1.While leave to appeal should be granted, the appeal should be dismissed.
2.Leave to cross‑appeal should be allowed as to the costs of the stay application, and the cross‑appeal should be allowed in part in that regard; leave to cross‑appeal in relation to the costs of the action should be refused and the cross‑appeal dismissed in that regard.
Background
Overview
On the uncontested material and (save in one respect in point 7 below) the judge's unchallenged findings, the relevant background included the following:
1.The appellant was born in March 1947.[3]
[3] Affidavit of the appellant filed 8 October 2021, par 1.
2.The appellant's affidavit evidence on the application was to the effect that the alleged assaults on the appellant by Lt Swift occurred at the Nedlands Boys' Home (Home), where he was placed for about eight months between August 1959 to April 1960.[4]
[4] Primary reasons [24].
3.The person to whom the appellant allegedly reported the assaults in 1960 was Major Watson, who appeared to have been in charge of the Home at the time, and who died in August 1968.[5]
[5] Primary reasons [26].
4.Despite extensive inquiries, the respondent has been unable 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.[6]
[6] Primary reasons [54].
5.Lt Swift died in October 2006.[7]
[7] Primary reasons [50].
6.The contemporaneous documents the respondent had been able to obtain neither recorded allegations of sexual assault by Lt Swift against the appellant, nor the existence of any relevant investigation by the respondent into Lt Swift.[8] In particular, the respondent had been unable to ascertain whether a 'Z file' - a type of Salvation Army file dealing with sensitive disciplinary matters - had been opened by Major Watson in relation to Lt Swift.[9]
[8] Primary reasons [55].
[9] Primary reasons [51].
7.The first time the respondent became aware that the appellant alleged he had been sexually assaulted by Lt Swift was when police contacted the respondent in February 2014.[10]
8.In July 2018 the specific allegations of sexual assault were first put by the appellant, through his solicitors, to the respondent.[11]
9.On 15 November 2018, the appellant issued a generally indorsed writ against the respondent claiming 'damages for assault and mental harm arising out of a sexual assault committed upon him by the Defendant's servant and agent, Frank Swift, at the Salvation Army Boys' Home, Nedlands … in 1958 and in 1959'.[12]
10.The appellant's statement of claim was filed on 2 May 2019. It alleged instances of sexual assault on the appellant by Lt Swift at the Home in a period of approximately eight months in 1957.[13]
11.In particulars of damage filed on 17 March 2020, the appellant alleged that he was placed in the Home around 7 September 1959 and resided there for eight months, and was sexually assaulted by Lt Swift in that eight‑month period from around September 1959.[14]
12.It was not in dispute that the appellant's claims were statute barred in the period (approximately) April 1971 to 30 June 2018.[15]
The pleadings
The appellant's statement of claim
[10] Primary reasons [50]. This finding is contested by Ground 1. As discussed in [59] ‑ [89] below, Ground 1 should be dismissed.
[11] Primary reasons [50].
[12] BB 51.
[13] Statement of claim, pars 3, 4; BB 55 - 56.
[14] Particulars of damage, pars 1.3 - 1.5; BB 83 - 84.
[15] Limitation Act 1935 (WA), s 38 and s 40; appeal ts 57 ‑ 58; appellant's written submissions, par 66.
The statement of claim alleged that about six weeks after the placement began, Lt Swift lured the appellant into the Recreation Hall at night, where he committed a series of sexual assaults. This started with Lt Swift placing his hand on the appellant's penis over his shorts. It escalated to Lt Swift doing so under the appellant's shorts and forcing the appellant to perform oral sex on and masturbate him. It was alleged that Lt Swift inflicted assaults of this nature multiple times each week during the appellant's placement.
The appellant further claimed that on occasions when Lt Swift was driving a truck, he would order the appellant to sit next to him with the gearstick between his legs. It was alleged that Lt Swift touched the appellant's knee under the pretence of missing the gearstick while changing gears.
The statement of claim also alleged that some weeks before the end of the appellant's placement, Lt Swift anally raped the appellant. It was alleged that the appellant reported the rape to Major Watson, said to be the officer in charge of the Home, and that Major Watson ignored him.
The statement of claim pleaded three causes of action against the respondent. The first was in negligence for breach of a non‑delegable duty of care. The second was for breach of statutory duty and the third was for vicarious liability for an alleged intentional tort committed by Lt Swift.
In relation to the claim in negligence, the appellant pleaded that at all material times, the respondent, its servants or agents owed him a common law non‑delegable duty of care to take reasonable care to ensure that he was not exposed to unnecessary risk of injury in his capacity as a child during his placement. This included injury as a result of the alleged abuse. The particulars of the pleaded non‑delegable duty of care were as follows:
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 [Boys'] 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 [Boys'] 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 [Boys'] Home to ensure the emotional and physical well-being of the Plaintiff.
e.The Defendant ought to have had systems in place at the [Boys'] 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 [Boys'] 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 [Boys'] Home; and in the case of criminal conduct, to the Police;
g.The [Boys'] 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.
Next, the appellant claimed that the respondent, its servants or agents owed him a statutory duty of care, pursuant to the provisions of the Child Welfare Act 1947 (WA), that he would not be harmed by reason of the breach of that Act or its Regulations by the respondent, its servants or agents.
As summarised by the primary judge, the appellant particularised the pleaded breaches of common law duty of care and statutory duty of care as follows:
a.The Defendant failed to protect the Plaintiff from sexual assaults as pleaded …;
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 [Boys'] Home Placement;
c.The Defendant failed to develop, implement or maintain a system for students at the [Boys'] 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 [Boys'] 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 [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;
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 [Boys'] 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 [Watson report].
The third claim pleaded in the statement of claim was that the alleged abuse by Lt Swift was intended to and did inflict harm upon the appellant, described as 'Swift's intentional tort'. The appellant pleaded that the respondent was vicariously liable for that tort.
The statement of claim alleged that the appellant suffered serious injury, loss and damage as a result of this tort. It further claimed aggravated and exemplary damages.
The defence
As the primary judge observed, the respondent by its Defence did not contest that it owned and operated the Home, that Lt Swift was a Salvation Army officer appointed to the Home or that Lt Swift was placed in the Home from 15 January 1959 to 6 September 1962. However, the respondent placed several matters in issue. These were as follows.
First, the respondent pleaded that it did not know and could not admit the allegation that the appellant in fact resided at the Home. It pleaded that it had searched for but did not possess any records concerning the appellant.
Second, the respondent did not admit the allegation that the appellant was in fact sexually abused by Lt Swift as alleged. It pleaded that the allegations were not properly particularised, in that they involved the alleged conduct of a deceased former officer of the respondent on unspecified occasions. As a result, the respondent did not know the case it was to meet at trial.
Third, the respondent did not admit that the appellant told Major Watson that he, the appellant, had been raped by Lt Swift. The respondent pleaded that it had searched for but did not possess any records concerning the appellant or reports made by him.
The fourth issue related to the existence and scope of the duties pleaded. The respondent did not admit the existence of any statutory duty. The respondent admitted that it owed a duty of care to children residing at the home. The respondent pleaded that this duty of care required it 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. The respondent denied that it breached any duty of care it owed to the appellant.
The scope of the admitted duty was therefore in contention. As the primary judge noted, the question of scope turned in part on factual issues, such as whether the respondent had knowledge that Lt Swift had sexually assaulted the appellant and whether the respondent had knowledge that either Lt Swift or other officers were sexually assaulting other boys at the Home.
Fifth, the respondent denied that it had breached any duty of care that it owed directly to the appellant, on the following basis:
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.
Sixth, the respondent did not admit that Lt Swift intended to and did inflict harm on the appellant, on the same basis as the respondent denied that it had breached the duty of care.
Seventh, the respondent denied that it was vicariously liable for any intentional tort committed by Lt Swift on the basis that it:
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 [.]
The primary judge's decision to grant a permanent stay of the action
The evidence
The respondent filed two affidavits in support of the application for a stay, sworn by Mr Luke Geary, a partner of the respondent's lawyers. In his first affidavit, Mr Geary annexed a statement by Commissioner Tidd, Territorial Commander, Salvation Army Southern Territory, dated 17 September 2015. This had been given by the respondent to the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission).[16]
[16] Mr Geary's affidavit, 24 May 2021, Annexure LG‑9; GB 153 ‑ 224.
The appellant filed four affidavits in opposition to the application. The first was made by the appellant and the other three were made by Ms Rosemary Littlefair, a solicitor employed by the appellant's lawyers. In Ms Littlefair's affidavit of 8 October 2021, she annexed a copy of the Royal Commission 'Report of Case Study no. 33' dated July 2016 (Royal Commission report),[17] and a copy of a report by Mr Trevor Walker titled 'Investigation into whether The Salvation Army's historical responses to child sexual abuse were affected by cultural, endemic, systemic failings of the organisation' dated 20 August 2015, given to the Royal Commission (Mr Walker's report).[18] Mr Walker had been the director of the Territorial Professional Standards unit for The Salvation Army Southern Territory (TSAS), including WA, between April 2014 and December 2018. He had been involved in the settlement of other claims made in relation to Lt Swift.[19]
[17] Ms Littlefair's affidavit, 8 October 2021, Annexure RL‑4; GB 746 - 922.
[18] Ms Littlefair's affidavit, 8 October 2021, Annexure RL‑70; GB 1111 - 1143.
[19] Primary reasons [122]; WB 8.
There was no cross‑examination on the affidavits.
The applicable principles
The primary judge's approach to the applicable principles on an application to grant a permanent stay was orthodox. No complaint is made in this regard. The power of the court to stay an action permanently lies in its statutory incidental jurisdiction.[20] The decision to grant or refuse a stay is discretionary in nature.[21] Its exercise is governed by principles developed at common law. For the purposes of the appeal the appellant accepted that it was necessary to show discretionary error in accordance with the principles set out in House v The King.[22]
[20] District Court of Western Australia Act 1969 (WA) s 6.
[21] The Council of Trinity Grammar School v Anderson [2019] NSWCA 292; (2019) 101 NSWLR 762 [431] (Bathurst CJ; Payne JA & Simpson AJA agreeing) (Trinity Grammar).
[22] House v King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ). See appellant's submissions par 9 WB 8. See also pars 36, 59, 87 WB 15, 20, 26; appeal ts 8, 17, 19, 48 - 50.
Section 6A of the Limitation Act does not circumscribe the jurisdiction of the court to grant a stay of a child sexual abuse action or the common law principles applicable to such an application. Section 6A(5) provides:
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.
As to the principles themselves, the primary judge referred to the helpful recent summary of the applicable principles by Bell P (as his Honour then was) in Moubarak by his tutor Coorey v Holt, where his Honour said:[23]
[23] Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218 [71] (Bell P; Leeming JA & Emmett AJA agreeing).
From a trilogy of decisions of the High Court between 1989 and 2006 (Jago; Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34; Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27), the following uncontroversial propositions may be derived:
(1)the onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant: Spautz at 529 (Mason CJ, Dawson, Toohey and McHugh JJ)
(2)a permanent stay should only be ordered in exceptional circumstances: Jago at 31 (Mason CJ), 76 (Gaudron J); Spautz at 529 (Mason CJ, Dawson, Toohey and McHugh JJ); Walton at 388 (Mason CJ, Deane and Dawson JJ)
(3)a permanent stay should be granted when the interests of the administration of justice so demand: Jago at 30 (Mason CJ), 74 (Gaudron J); Spautzat 520 (Mason CJ, Dawson, Toohey and McHugh JJ); Batistatosat [12] (Gleeson CJ, Gummow, Hayne and Crennan JJ)
(4)the categories of cases in which a permanent stay may be ordered are not closed: Jago at 74 (Gaudron J); Batistatos at [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ)
(5)one category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive: Jago at 74 (Gaudron J); Walton at 393 (Mason CJ, Deane and Dawson JJ)
(6)the continuation of proceedings may be oppressive if that is their objective effect: Batistatos at [70] (Gleeson CJ, Gummow, Hayne and Crennan JJ)
(7)proceedings may be oppressive where their effect is 'seriously and unfairly burdensome, prejudicial or damaging': Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197 at 247 (Deane J); [1988] HCA 32 cited in Jago at 74 (Gaudron J); Batistatos at [70] (Gleeson CJ, Gummow, Hayne and Crennan JJ)
(8)proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party: Walton at 393 (Mason CJ, Deane and Dawson JJ); Batistatos at [6] (Gleeson CJ, Gummow, Hayne and Crennan JJ), and
(9)proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people: Walton at 393 (Mason CJ, Deane and Dawson JJ); Batistatos at [6] (Gleeson CJ, Gummow, Hayne and Crennan JJ).
The primary judge also observed that it was necessary to focus on the particulars to the statement of claim[24] and there was no requirement that the claim be untenable.[25]
[24] Primary reasons [16].
[25] Moubarak [195] (Leeming JA).
Expressed at a high degree of abstraction, the respondent's application was premised on the proposition that the delay by the appellant of some 60 years before commencing the action meant that it would be manifestly unfair to have to defend the proceedings. The primary judge approached his task by reference to the question as articulated by the New South Wales Court of Appeal in Trinity Grammar:[26]
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.
[26] Trinity Grammar [446] (Bathurst CJ; Payne JA & Simpson AJA agreeing).
The judge accepted that mere delay would not ordinarily justify a stay.[27] The significance of the delay will depend on all the facts. It is here that evaluative judgments informing the discretion will be brought to bear. As Bell P observed in Moubarak, where the legislature has not imposed a limitation period at all, a defendant cannot complain of unfairness occasioned by the prolonging of uncertainty by delay.[28] However:[29]
A second form of unfairness that may arise from the effluxion of time is the effect of delay on the trial process. 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. The fallibility of human memory and the capacity of the human mind for ex post rationalisation of events long since passed are the subject of the frequently cited observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318–319. See also McFee v Reilly [2018] NSWCA 322 at [42] and the discussion of the phenomenon of false memories honestly believed by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), noted by Davies J in Nominal Defendant v Cordin (107) 79 MVR 210; [2017] NSWCA 6 at [169]. (original emphasis)
[27] Primary reasons [22].
[28] Moubarak [74].
[29] Moubarak [77] (Bell P).
It follows that in this class of case, a balancing exercise is required:[30]
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 primary judge's determination of the application
[30] Moubarak [205] (Emmett AJA).
The judge observed that there were strong public interest factors in permitting claims for damages for sexual abuse of children to be brought at any time, as reflected in the amendments to the Limitation Act. His Honour also recognised the strong public interest in claimants having the opportunity to present their allegations in court, with the attendant therapeutic benefits and sense of closure.[31]
[31] Primary reasons [133] - [134].
The judge observed that sexual assaults typically occur in private, such that the absence of documentary evidence bearing on the likelihood of the assaults having occurred was of little weight.[32] He assumed that the appellant was able to produce evidence in support of the case pleaded and particularised. To this end, there was evidence tending to corroborate the allegation that the appellant was a resident at the Home when he claimed.[33]
[32] Primary reasons [139].
[33] Primary reasons [108], [140].
The appellant was also able to produce at least 10 other male witnesses who allegedly experienced sexual abuse at the hands of Lt Swift at the Home or other Salvation Army homes, in similar circumstances. The judge accepted that this evidence might be admissible as similar fact evidence relevant to the probability that the assaults against the appellant occurred as he alleged.[34]
[34] Primary reasons [110] - [112].
This evidence would not assist, however, with the next step, that is the questions of direct or vicarious liability for the appellant's loss and damage. The judge therefore focused on whether, having regard to a number of considerations consequent on the passage of time, the respondent could meaningfully defend the action from this perspective.
The availability of witnesses
The first matter that the judge considered supported the grant of a stay was the fact that 'Lt Swift died well before the defendant was first made aware of the plaintiff's allegations'.[35] Lt Swift was unable to respond; the judge recognised that this was a significant factor in favour of a stay.[36] Importantly for the appellant's complaint in Ground 1 of the appeal, his Honour further observed:[37]
Nor is this a case like WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [[2020] VSC 639 [93], [208] - [212] (Keogh J)] 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 [sic] the perpetrator while he was still alive, with there being a likelihood that further relevant evidence would be discovered on reasonable inquiry.
[35] Primary reasons [141].
[36] Primary reasons [141], citing Moubarak [163] - [169] (Bell P); Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776 [22] (Beech-Jones J); Chalmers v Leslie [2020] QSC 343; (2020) 6 QR 547; GMB v UnitingCare West [2020] WADC 165 (GMB at first instance).
[37] Primary reasons [141].
The judge then turned to other witnesses. The person believed to be Major Watson died in 1968. The widow of Lt Swift died in 2019 and appeared to have suffered from significant memory issues for about two years before that. The children of Lt Swift were unable to provide any substantive information. Notwithstanding extensive inquiries, the respondent had been unable to identify any other officer who worked at the Home at the relevant time who was still alive and able to provide relevant information.[38]
[38] Primary reasons [51] - [54].
The judge referred to several authorities where the death of relevant witnesses featured as a factor in favour of a grant of a stay. In Trinity Grammar, the claimant alleged he had been assaulted between 1974 and 1976 by a teacher, 'Futcher', at his preparatory school. He claimed that, in 1975, he made a complaint to one Reverend Sandars, the Master in Charge of the preparatory school. Reverend Sandars died in 2012. The school had previously been notified of the claimant's intention to institute proceedings, but the claimant had not further responded to the school's request for an explanation of the basis on which liability was said to arise.
The evidence was that Reverend Sandars had largely exercised sole control of the operation of the preparatory school, without any ongoing operational supervision. Bathurst CJ observed:[39]
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 … they allege … 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.
[39] Trinity Grammar [459].
This difficulty extended to the claim of breach of non-delegable duty, given Reverend Sandars' complete responsibility for the operation of the preparatory school. It also extended to the claim of vicarious liability. The school was unable to respond to the claims that it failed to remove Futcher in the wake of the claimant's disclosure to Reverend Sandars of the first assault, and that it subsequently acquiesced in or authorised the teacher to transport the claimant to sport and elsewhere.[40]
[40] Trinity Grammar [465] - [466] (Bathurst CJ), referring to Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134[84] - [85] (French CJ, Kiefel, Bell, Keane & Nettle JJ).
Prejudice arising from comparable considerations was influential in the grant of a stay in Moubarak[41] and Connellan v Murphy.[42] The primary judge in the present case gave considerable weight to the fact that all relevant witnesses who could be called from the respondent's perspective were deceased.[43]
Documentary evidence
[41] Moubarak [163] - [171] (Bell P), [188], [196] (Leeming JA).
[42] Connellan v Murphy [2017] VSCA 116 [62], [65].
[43] Primary reasons [142].
The respondent gave evidence of the documentary searches that it had made since the service of the statement of claim in May 2019. Nothing it found recorded allegations of sexual assault by Lt Swift against the appellant being brought to the attention of the respondent, nor the existence of any relevant investigation into the conduct of Lt Swift.[44]
[44] Primary reasons [55] - [57].
The judge accepted that the respondent's searches had been comprehensive. His Honour expressed his satisfaction that, due to the passage of time, the respondent had been denied the opportunity to investigate meaningfully whether there were documents relevant to the issues in the action. He was satisfied that there were no other meaningful enquiries the respondent could make either to ascertain potential witnesses or obtain contemporaneous documents.[45]
Forensic disadvantage
[45] Primary reasons [143] - [144].
The judge identified forensic disadvantage going to the respondent in three significant respects. The first arose from the absence of raw material by way of instructions from Lt Swift, other witnesses or documents with which to test the memory of the appellant in cross‑examination. The judge acknowledged that some material was available. The appellant and other witnesses who claimed to have been abused by Lt Swift were able to give evidence and be challenged. They had given histories to medical practitioners, police and other witnesses. However, the judge held that this did not make up for the absence of material identified by the respondent.[46]
[46] Primary reasons [146].
Second, and following a review of the reasoning of Bathurst CJ in Trinity Grammar, the judge found that the respondent was faced with a specific difficulty in how to address the allegation that the appellant had told Major Watson that Lt Swift had sexually abused him. The respondent now had no information by which it could consider what it knew, as an organisation, at the time.[47] This affected the ability of the respondent to respond to the claim of breach of non-delegable duty of care, as identified in Trinity Grammar:[48]
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: Lepore at [38] - [39], [265] - [270] and [291].
[47] Primary reasons [149].
[48] Trinity Grammar [433] (Bathurst CJ).
The appellant submitted that, to the contrary, there was evidence that the Salvation Army lacked systems and procedures to protect children from abuse. He pointed to evidence of another boy having complained to Major Watson about Lt Swift in 1960 or 1961. The judge noted that this was a complaint about a physical, not a sexual, assault. The judge further considered that evidence of complaints about Lt Swift after the appellant had left the Home, or when Lt Swift was posted elsewhere, was not relevant to the state of the respondent's corporate knowledge at the time of the alleged abuse of the appellant.[49]
[49] Primary reasons [119].
The appellant further submitted that the Royal Commission had heard and accepted evidence that, for a long period of time spanning the events the subject of the present matter, the Salvation Army had no specific policies or procedures for responding to complaints of sexual abuse in any of the homes it operated.[50] However, the judge considered that the findings of the Royal Commission could not be lead as evidence at trial. The appellant would still have to lead sufficient admissible evidence from which the court could make findings on the alleged particulars of breach.[51]
[50] Primary reasons [120].
[51] Primary reasons [121].
The appellant also pointed to Mr Walker's report, which included the following:[52]
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.
[52] Primary reasons [123].
The judge considered, however, that the statements by Mr Walker were not evidence that could be led at trial.[53] They were not admissions against interest by the respondent as regards the specific claims by the appellant. The respondent further led evidence that Mr Walker could not usefully provide any further information. The judge also noted that the appellant had been critical that further inquiries had not been made of Commissioner Tidd.[54] However, his Honour found that further searches had been undertaken by the respondent, and that a further approach had been made to Commissioner Tidd who could not provide any information beyond that already before the court.[55]
[53] Primary reasons [124].
[54] Primary reasons [127]; In Ms Littlefair's affidavit of 8 October 2021, par 128, she said: 'No explanation has been provided to me or anyone else at [the appellant's lawyers] or [the appellant] as to why Mr Tidd has not been approached regarding this matter, given his familiarity of the settlements for victims of child sexual abuse suffered while resident at homes of the Salvation Army …'; GB 731 ‑ 732.
[55] Primary reasons [124] - [129].
Third, and of particular relevance to the claim of vicarious liability, the judge accepted that in the absence of witnesses and documents, the respondent was unable to consider the precise role of Lt Swift or the scope of his duties at the Home.[56] The appellant identified that there was evidence that Lt Swift was a Salvation Army Officer appointed to the Home, and that he was there from 1959 to 1962. However, the judge concluded that the respondent was unable to ascertain whether it acquiesced in or authorised Lt Swift to engage in the activities in the course of which the alleged assaults occurred.[57] As the court in Trinity Grammar observed:[58]
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 in which the school placed the teacher and whether that gave the 'occasion' for the assault.
[56] Primary reasons [148].
[57] Primary reasons [148].
[58] Trinity Grammar [434] (Bathurst CJ).
Bringing all these matters to account, the judge concluded that the respondent could not meaningfully defend the action, having available no contemporaneous material of any kind to enable it to evaluate the appellant's claim. The primary judge concluded that the 'clear balance of the factors' compelled the conclusion that this case warranted the exceptional step of granting a permanent stay.
The appeal
As identified above, the appellant accepted that the decision to grant a permanent stay is discretionary, the product of a balancing exercise that has regard to all relevant factors. In this respect, the appellant accepted that his complaint that the judge erred in making that discretionary decision depends on the establishment of error in accordance with the principles set out in House v The King:[59]
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
[59] House v The King (504 - 505) (Dixon, Evatt & McTiernan JJ).
As already identified, we do not accept that the judge erred in this manner.
Having regard to the way in which the appeal was conducted - and the understandable response of the respondent to answer the case that was advanced by the appellant in the terms in which it was advanced - our reasons proceed on the premise on which issue was then joined, that is, the need to establish House v The King discretionary error. The possibility that the relevant test on this appeal against a stay of proceedings for abuse of process is whether the conclusion of the trial judge was correct to order the stay, was acknowledged but not argued.
Grounds of appeal
The appellant raised four grounds of appeal to the effect that the judge erred:
1.in finding that Lt Swift had died well before the respondent was first made aware of the appellant's allegations such that the respondent did not have an opportunity to investigate the allegations;[60]
2.in failing to consider (on the assumption Ground 1 is not established) whether, if the respondent had theoretically been made aware of the appellant's allegations at an earlier time, the respondent would have investigated them and, if so, when; and in failing to find as a fact that the respondent would not have investigated the allegations;[61]
3.in finding that the respondent was otherwise prejudiced through the loss of documents and the ability to call witnesses;[62] and
4.in failing to have any regard to Commissioner Tidd's statement dated 17 September 2015 (referred to in [25] above) as evidence relevant to alleged prejudice and containing admissions against interest.[63]
Whether error to find that the respondent was not aware of or did not have an opportunity to investigate the appellant's allegations until after Lt Swift had died (Ground 1)
[60] WB 5; Primary reasons [50], [141].
[61] WB 5 - 6; Primary reasons [50], [141].
[62] WB 6; Primary reasons [50] - [57]; [78] ‑ [105], [118] ‑ [129], [142] ‑ [149].
[63] WB 6; Primary reasons [120] ‑ [121], [124], [147].
The appellant challenged the judge's finding that Lt Swift had died before the respondent was able to investigate the claims. This challenge was premised on the appellant's affidavit evidence that he made the respondent aware of his allegations in 1960, by informing Major Watson of the alleged assaults. The respondent was consequently, it was submitted, not denied any opportunity to put the allegations to Lt Swift or investigate them in any way.
The starting point for the treatment of this evidence, in the appellant's submission, was the fact that the onus lay on the respondent to establish the existence of the exceptional circumstances required for a stay. Given that onus, it was for the respondent to prove, in light of this evidence of complaint, that it was not made aware of the appellant's allegations at the time.
The respondent did not challenge by cross‑examination the appellant's evidence on the application that he had reported the alleged assaults to Major Watson. It did not cross-examine the appellant on his evidence in opposition to the stay application at all. That being the case, in the appellant's submission, it was not open to the primary judge to make the following finding:[64]
Lt Swift died on 3 October 2006. 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. It was not until 13 July 2018 that the specific allegations were first put by the plaintiff, through his solicitors, to the defendant. 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. (footnotes omitted)
[64] Primary reasons [50].
As noted above, the judge reasoned that the fact that Lt Swift died 'well before the defendant was first made aware of the plaintiff's allegations' was a 'significant factor' in favour of granting a stay.[65]
[65] Primary reasons [141].
The appellant's contention of error in this regard requires consideration, in context, of the task required of the judge. This was an application for a stay. The onus of persuading the judge that a stay should be granted lay with the respondent. However, the evidentiary onus of establishing any particular proposition was capable of shifting, depending on what was in issue and the state of the evidence.
On the issue of when the respondent was first notified of the appellant's allegations, the respondent's express position on its application for a stay was that it was first notified on 10 February 2014, when it was first contacted by police.
The appellant did not argue, at first instance, that his complaint to Major Watson constituted a notification to the respondent of his allegations. The appellant's submissions in response to the respondent's contentions regarding delay were directed to the issue of resulting prejudice, apparently on the premise that the respondent was not notified prior to 2014.
Having said that, the appellant's affidavit evidence in response to the stay application included the following:
First complaint made to Major Watson
113.The first complaint I made to Major Watson was about half way though [sic] my stay at the Home following [the] incident where Swift had forced me to perform oral sex on him in the recreation room, described above …
114.I can't remember what time of the day it was when I made this complaint, it might have been in the afternoon or at least during the daytime because it was still daylight.
115.I left the recreation room and saw Major Watson was standing in the lawn area situated between his house and the other part of the Home. He was alone.
116.I don't remember word for word what I said to him. To the best of my recollection, I said words to the effect of 'Lieutenant Swift was playing with me'.
117.I then tried to explain to Major Watson in more detail what Swift had been doing to me, but Major Watson cut me off mid-sentence. I think I had gotten to the stage where I said Swift was 'touching me' and I was about to say something else when Major Watson said words to the effect of 'you shouldn't tell lies'.
The second complaint to Major Watson
118.I complained to Major Watson again a few weeks after the first complaint, after I was raped in the dormitory, described above …
119.On this occasion, I saw Major Watson standing near the uniform shop so I started walking towards him and when I caught up to him, he was in the garden walking away from the uniform shop.
120.When I approached Major Watson tears were running down my face. As I was about to speak, Major Watson said to me words to the effect of 'stop your lying or I'll give you the strap'.
121.After that I never complained to him or anyone else at the Home about the sexual abuse I was experiencing from Swift.
(original emphasis)
The respondent submitted that this evidence of complaint was anodyne, in that it did not descend into any detail. It may have been short on detail, but for present purposes it is sufficiently clear that it was evidence of a complaint to the effect that Lt Swift had sexually abused the appellant.
In any event, the appellant's written submissions before the primary judge only referred to this evidence in the context of the respondent's lack of systems and procedures to protect children from abuse. It followed, in the respondent's submission, that it was plain that the appellant had only read that evidence for the purpose of identifying the evidence he would adduce at a trial of the action. It was no part of the appellant's resistance of the application for a stay to submit that the evidence showed that he had, in fact, relevantly notified the respondent of a claim in 1960. Indeed, at one point in the argument, the following exchange occurred between the judge and counsel for the appellant:[66]
[His Honour]: … as I understand it, it's not in issue that the defendant wasn't put on notice that the plaintiff had made an allegation against Lieutenant Swift till after he died.
Hammond, Mr: No. And we don't suggest it does.
[66] GB 58.
It followed, the respondent submitted, that the appellant was not now entitled to rely on the alleged complaint to Major Watson for the purposes of demonstrating error on the part of the primary judge in concluding that the respondent had first been notified on 10 February 2014.
For his part, the appellant submitted that this concession was made in the context of the foreshadowed litigation. A fair reading of the transcript supports that view. Nevertheless, the appellant did not identify here, or at any point, any earlier notification than 2014 in his resistance to the stay application.
The appellant submitted that in any event, his failure to identify the evidence of the complaint to Major Watson as constituting the relevant notification, and by that means to prosecute a case that the respondent had been notified in 1960, was not fatal to the argument on appeal. The appellant submitted that this was a matter so fundamental and obvious that it was an error for the judge not to find, as a fact, that the respondent had been notified in 1960 of the appellant's allegations of sexual assault.[67]
[67] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [120] (Gummow ACJ, Kirby, Hayne & Heydon JJ); GMB v UnitingCare West [2022] WASCA 92 [23] (Quinlan CJ, Beech & Vaughan JJA).
This contention requires an examination of the principles underlying the stay application. What was relevantly in issue on the application was, in general terms, the ability of the respondent to defend the action meaningfully at the time it was brought. In that respect, while repetitive, it is convenient to emphasise the following passage from Bell P's reasons in Moubarak:[68]
A second form of unfairness that may arise from the effluxion of time is the effect of the delay on the trial process. 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 … 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.
[68] Moubarak [77] (Bell P).
The respondent pointed to a number of cases that have required an assessment of whether the action could be meaningfully defended at the time that it was brought.[69] The principle behind this orthodoxy is evident: what is at stake is whether the trial of the proceedings now in contemplation would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[70]
[69] Grant v Bird [2021] VSC 380; Ward.
[70] Moubarak [189] ‑ [190].
In this context, depending on the circumstances of the particular case, it may be relevant to consider whether a present inability to defend an action is due to a defendant's own failure to investigate a claim at the time it was notified. In Trinity Grammar, the school was, in 1997, notified by police of an allegation of sexual abuse by the teacher that had occurred between 1974 and 1976. At that stage, any claim was statute-barred. That remained the case when the plaintiff notified the school of an intention to commence proceedings in 2004. The school did not commence any investigation in 1997 or 2004. The former headmaster of the school died in 1997. The Master in Charge of the preparatory school at the relevant time died in 2012.
Solicitors for the plaintiff then notified the school in 2014 of an intention to commence proceedings and apply for an extension of time. Proceedings were commenced in early 2016. Shortly after that, the relevant time bar in respect of civil proceedings for damages arising out of child sexual assaults was abolished. The school applied for the proceedings to be permanently stayed.
Bathurst CJ made the following observations:[71]
There remains the question of whether the failure to investigate the claim earlier leads to the conclusion that Trinity should be denied a stay because had an earlier investigation been made, it would have been able to deal with the claim.
It seems to me that if, in the face of reasonably anticipated litigation, timely steps were not taken to gather evidence, whether documentary or oral, and as a result, a party lost the ability to meaningfully deal with the claim against it, then it would be contrary to the administration of justice to grant a stay. Indeed, to deprive a litigant of his or her right to bring a claim in those circumstances would itself bring the administration of justice into disrepute.
In the present case, Trinity was first notified of the sexual abuse in 1997. That notification came from the police, not from representatives of the respondent. The claim at that stage was statute-barred. It does not seem to me that in those circumstances there was a need at that point to investigate that claim. Mr Dungan's approach to allow the police to investigate was justified.
The events in 2004 give rise to greater difficulty ...
[71] Trinity Grammar [493] - [496].
His Honour went on to consider the fact that the former Master in Charge of the preparatory school was still alive in 2004, and the general appropriateness of investigating the matter when notified in 2004, given the increasing ages of the various witnesses. However, having regard to the position under the Limitation Act 1969 (NSW) at that time and the criteria for obtaining an extension of time, he concluded that it was not unreasonable for the school to adopt the position that the claim was statute-barred and not investigate its merits.[72]
[72] Trinity Grammar [503] (Bathurst CJ).
The present case is different in that the appellant's evidence was that he complained to Major Watson prior to the expiry of the then limitation period.
At the time of bringing the action, however, the person most likely to be Major Watson had been dead for 50 years. There are no contemporaneous written records of the complaint or, therefore, of how Major Watson treated it at the time. Neither is there any contemporaneous record of any investigation into Lt Swift. Lt Swift died in 2006 and so was not in a position to respond. No other officer who worked at the Home during the appellant's residence or who was otherwise close to Lt Swift, and who might be able to provide relevant information, could be identified.
It follows that, unlike in Trinity Grammar, the available records suggest that this is not a case where the respondent's inaction following an allegation can be assessed to determine whether the administration of justice requires that the respondent not have the benefit of that inaction. The appellant submitted that it would be possible to cross-examine him on his complaint and Major Watson's response. Herein lies the difficulty: the respondent does not have the material to challenge or even test the appellant's account.
The respondent's position is, therefore, that the appellant's evidence that he complained to Major Watson 60 years ago is, in the circumstances, itself incapable of investigation. The respondent cannot test the claim that the appellant made the complaint. The documents that are available do not identify what, if any, action Major Watson took. That preliminary question, namely whether the respondent was relevantly notified in 1960, is itself an issue that (subject to further contentions of the appellant addressed below) cannot now be the subject of a fair curial determination.
It is against these matters that the appellant's complaint that the primary judge erred in not concluding that the respondent had been made aware of the appellant's claims in 1960, by reason of the alleged report to Major Watson, must be assessed. The respondent has a forceful argument that it is now unable to test the appellant's evidence of the complaint and Major Watson's response. It follows that the respondent would have been at a severe disadvantage in engaging with an argument before the primary judge that its delay in investigation of the appellant's complaint was a consequence of its own indolence from 1960.
Had the appellant made this argument on the stay application, it would have been open to the respondent to argue that it was prejudiced in meeting the contention that it had been relevantly notified in 1960. However, the respondent was not required to meet that contention. The appellant had not only not characterised this evidence as constituting a relevant notification but had expressly conceded that the respondent had not been put on notice until after Lt Swift had died.
The primary judge therefore proceeded to consider and determine the application on the conceded premise, for which there was a sound evidential basis, that the respondent had not been notified until after Lt Swift had died.
In determining whether that approach was tainted by error, we observe that, for the reasons explained above, this premise was supported by the strength of the available inference that the respondent would have been highly disadvantaged in attempting to test the appellant's evidence of complaint.
In those circumstances, for the purposes of the stay application, the proposition that the respondent was notified in 1960 by reason of the alleged report to Major Watson is hardly fundamental and obvious. To the contrary, it is highly problematic. The appellant took an understandable and, with respect, appropriate position before the primary judge as to when the respondent was first notified. The appellant now seeks to advance a different position on appeal.
The inclusion of the evidence regarding a complaint to Major Watson in the appellant's affidavit did not, in the circumstances, have an apparent forensic purpose beyond identifying the case the respondent would have to meet at trial. That being so, the respondent was relieved of any further burden of demonstrating it had not been notified of the claim before 10 February 2014. Its failure to cross-examine the appellant on his affidavit evidence did not require the primary judge to accept that it had relevantly been notified in 1960.
Further, even if the appellant had led the evidence of the alleged complaint for the purposes of obtaining a finding of fact on the application that the respondent had been notified of the alleged sexual assault in 1960, the probability of the fact of complaint was itself bound up with the merits of the underlying allegation of sexual assault. The judge could not effectively have made a finding of fact as to the complaint in isolation from a consideration of the broader issue as to whether there had been any assault as alleged. The judge was plainly not in a position to undertake the necessary evaluation in the context of an interlocutory application as to whether a trial of that issue would be so unfairly and unjustly oppressive as to constitute an abuse of process. Indeed, if there were a trial, the question of whether any complaint had been made by the appellant at the time, as alleged, could likely be relevant (depending on all the circumstances) to an assessment of the evidence as a whole, including with respect to the alleged assaults.
In our view, giving due regard to how the appellant conducted the case at first instance, it cannot be said that the primary judge erred in finding that the respondent first became aware of the appellant's allegations against Lt Swift on 10 February 2014 and so did not have an opportunity to investigate the allegations until after Lt Swift had died. We would dismiss Ground 1 of the appeal.
Whether the judge erred in failing to consider whether the respondent would have investigated the appellant's allegations earlier and, if so, when, had it been aware of them; and
Whether the respondent would have investigated the allegations, had it known of them, such that the delay resulted in significant prejudice (Ground 2)
The appellant's arguments on appeal
This ground is raised in the alternative to Ground 1 and proceeded on the basis that the judge correctly found that Lt Swift died before the respondent was first made aware of the appellant's allegations. The appellant submitted that it was implicit in the respondent's assertion of prejudice that had it theoretically been informed of the appellant's allegations as alleged in the statement of claim before Lt Swift's death, it would have investigated them.[73] In circumstances where there was evidence that the respondent had a practice of ignoring and failing to investigate such allegations, the appellant contended that the respondent had failed to establish any prejudice in fact.[74]
[73] WB 17.
[74] WB 17.
The evidential premise on which this ground rested was primarily Commissioner Tidd's statement dated 17 September 2015 to the Royal Commission. His statement included the following passages:
I have learnt that some children had told officers and/or employees that they were being abused. Tragically, these children were too often not believed and their pleas were ignored or they were dismissed as lies.
…
As indicated above, it seems clear that there were care leavers who told officers or other staff that they were being abused at TSAS homes. It seems that in most cases nothing was done about these allegations.
Commissioner Tidd also referred to Mr Walker's report and statement to the effect that:
prior to a formal scheme being established in or about 1994 by TSAS for handling complaints of sexual abuse, TSAS did not have any formal procedure for the investigation of claims of child sexual abuse. Rather, individual officers within a relevant children's home, and/or officers responsible for a particular Division, were left to deal with complaints in an ad hoc manner and without the benefit of guidance or directions as to how to escalate the matter. Mr Walker concludes that as a consequence, claims of child sexual abuse were either not investigated, or not properly investigated. Further, Mr Walker concludes that some care leavers who complained were not believed or their complaints were dismissed.
Evidence of the solicitor for the Salvation Army before the Royal Commission, Mr Brewin, indicated that the scheme was not established until 1997. In any event, Commissioner Tidd said:
I agree entirely with the conclusion in Mr Walker's report on this matter, namely that TSAS failed to adequately explore and investigate claims of abuse and it failed to appropriately respond to such claims. It is nothing short of tragic that these poor children's pleas for help went unanswered.
The appellant submitted that there was nothing in the evidence of Commissioner Tidd or Mr Brewin that suggested that allegations of abuse not constituting claims for compensation were investigated after 1997, or that there was any retrospective investigation of allegations of sexual abuse from before 1997.[75] Further, the evidence of Mr Brewin was:
When TSAS receives a claim where the claimant is able to identify an alleged perpetrator, and the perpetrator is an officer who is still alive, and their whereabouts known, Nevett Ford [Mr Brewin's firm] typically seeks instructions from TSAS to contact that person. If the accused officer is unwell or elderly, or refuses to assist us in our investigation, our request to contact them may be refused.
[75] WB 20.
Against this evidential background, the appellant pointed to evidence indicating that Lt Swift retired in 1989, suffering from Alzheimer's disease. When the Salvation Army received an unrelated complaint of abuse against Lt Swift in August 2003, three years before Lt Swift's death, it did not contact Lt Swift.
That being the case, the appellant submitted that there was no basis to think that the respondent would have acted to investigate his allegations had it been notified prior to Lt Swift's death.[76] Indeed, the evidence suggested that the respondent would not have done so. It followed, in the appellant's submission, that the respondent had not proved that it was prejudiced by the delay in the appellant reporting the allegations of sexual abuse by Lt Swift.[77]
[76] WB 20.
[77] WB 20.
The appellant relied, in support of this argument, on a statement by this court in Medical Board of Australia v Woollard.[78] That was an appeal from an order of the State Administrative Tribunal striking out, as an abuse of process, claims alleging professional misconduct on the part of the respondent medical practitioner in performing angioplasty procedures. The claims which were struck out included a claim by the Board, first raised in May 2015, that the respondent had not undergone adequate training to perform the procedures (referred to as the 'Inadequate Training Claim').[79]
[78] Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32.
[79] Woollard [50], [58(a)], [60] ‑ [61].
In striking out the Inadequate Training Claim, the Tribunal found that, whilst there had been no relevant delay prior to the Board receiving a complaint in May 2012 from the widow of a patient who had died as a result of such a procedure (described as the 'widow's complaint'),[80] the Board nevertheless ought reasonably to have had sufficient concern about the practitioner's training to commence investigations into his training for the purpose of dealing with the widow's complaint 'well prior to 23 September 2013'.[81] The finding was to the effect that the Board was on notice of the medical practitioner's lack of training at some point between May 2012 and 'well prior to 23 September 2013' such that, in the circumstances, the prosecution of the Inadequate Training Claim in 2015 thereby constituted an abuse of process.[82]
[80] Wollard [156].
[81] Wollard [159(e)].
[82] Wollard [108], [220].
The court allowed the Medical Board's appeal. In doing so, it considered the well-known authorities concerning the relationship between delay and abuse of process.[83] As to the Tribunal's finding that the Board, acting reasonably, ought to have been concerned with and acted upon the possible inadequacy of the doctor's training prior to 23 September 2013, the court found that proposition to be doubtful, but continued:[84]
In any event, the finding is incapable of assisting in the drawing of an inference of abuse of process in this context. That is because, even if an inference of some delay were open, the question of when the earlier investigation into Dr Woollard's training should have been commenced, and related questions of the period of delay caused by the Board's neglect in failing to commence the investigation earlier, and the extent to which (if any) that delay occasioned or contributed to any prejudice to Dr Woollard, were considerations which the judge was bound, but failed, to consider.
[83] See particularly Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23; Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; R v Edwards [2009] HCA 20; (2009) 83 ALJR 717.
[84] Woollard [168] (Newnes & Murphy JJA).
The appellant relied on this passage in support of the propositions raised by Ground 2. Similarly, he relied on the following further passages in Trinity Grammar:[85]
Recently, in Moubarak, Bell P at [77] stated that unfairness arising from the effluxion of time may result from 'the impoverishment of the evidence available to determine the claim'. He said that this consequence was 'less likely to be a critical factor where the resolution of a case turns predominantly on documentary evidence' …
…
Further, as Bell P pointed out in Moubarakat [89], 'a fair trial is not synonymous with a perfect trial'. The absence of documents or witnesses, even if regarded by the party as significant, will not, of itself, be such as to warrant a stay. A stay is warranted only where the delay and consequent loss of documents or witnesses is such that, as Mason J pointed out in Jago, any trial is so unfair and burdensome so as to bring the administration of justice into disrepute. (emphasis added)
The appellant's arguments before the primary judge
[85] Trinity Grammar [427], [429] (Bathurst CJ).
Some background to the appellant's arguments with respect to appeal Ground 2 is required.
Before the primary judge, the gist of the appellant's contention was not that the (accepted) absence of an opportunity to conduct an investigation in Lt Swift's lifetime could result in no prejudice, but rather, any prejudice to the respondent was of limited weight in the exercise of the judge's discretion. That was because, the appellant submitted, even if Lt Swift were still alive, the forensic contest at any trial:[86]
would necessarily be determined by resolving a conflict of evidence as between [the appellant] and [Lt Swift]. Evidence provided to the Royal Commission was such that 'officers who are interviewed almost always deny the allegations'. For that reason it would be surprising if [Lt Swift] made any admissions about sexually abusing [the appellant] to his wife or children or colleagues. Accordingly, [the respondent's] inability to speak with members of [Lt Swift's] family or previous colleagues … is of no moment. [The appellant] is similarly prejudiced in that he cannot challenge or test the credibility of [Lt Swift] and his account of events or denial of the allegations. … [Lt Swift's] death will make it more difficult, but not impossible having regard to the other evidence before the Court, for [the respondent] to defend the proceedings compared with the position had [Lt Swift] been available to provide instructions.
[86] Plaintiff's outline of submissions in opposition to the defendant's application for a permanent stay of proceedings filed 29 October 2021, pars 42 - 43; BB 125; referred to by senior counsel for the appellant at appeal ts 43.
Similarly, in oral submissions, with reference to the position of Major Watson, the appellant submitted, in effect, that even though there was no opportunity now for the respondent to test the allegations by taking a statement from Major Watson, based on the Royal Commission report, Major Watson would inevitably have denied the allegation in any event.[87] In this context, counsel for the appellant asked, rhetorically:[88]
If one assumes that … Mr Watson was still alive, how much further does it take [it], in relation to the task required by a trial judge in terms of evaluating that evidence, if there is just a bare denial?
[87] ts 45 - 47.
[88] ts 45.
The respondent, for its part, (as noted by senior counsel for the appellant in argument on the appeal)[89] contended that even though, on the evidence before the Royal Commission, no documents recording policies or systems for the protection of children were likely to have been lost by the effluxion of time, information relevant to systems or practices in fact in place at residential homes, or concerning ad hoc responses to complaints, which were not recorded formally, was no longer available.[90]
[89] Appeal ts 43 - 44.
[90] ts 32.
Apparently in this connection, there was a debate[91] between counsel for the appellant and the primary judge which went back and forth, seemingly at times at cross‑purposes, in connection with (1) the topic of the appellant potentially tendering at a trial the Royal Commission report and its admissibility at trial, and (2) the repetition by the appellant of the contention that, for the purposes of weighing potential forensic prejudice on the application, the Royal Commission evidence indicated that the respondent had a culture of not making inquiries even when they were called for.[92] As to the latter matter, the submission appeared, in context, to be an elaboration of the point that any inquiries at an earlier time would have been superficial and turned up nothing more than bare denials of liability, and as the plaintiff must prove his case in any event, the loss of an inquiry which would have yielded a bare denial of liability would be an insufficient forensic prejudice to warrant a stay.
[91] Referred to by senior counsel for the appellant at appeal ts 43 - 44.
[92] ts 47 - 48.
As to the former of the matters in the preceding paragraph, the judge found (as noted in [50] and [52] above) that the Royal Commission report and Mr Walker's report would not be admissible at trial against the respondent as admissions against interest. This finding is now raised in the context of the challenge in Ground 4, as discussed later.
At this point, it is convenient to observe that the appellant did not address in oral argument the judge's questions as to the basis upon which the Royal Commission report or Mr Walker's report would be admissible at a trial. In particular, it was not submitted by the appellant before the primary judge that Commissioner Tidd's adoption of Mr Walker's report, in his statement dated 17 September 2015, constituted an admission on the part of the respondent, and that it was Commissioner Tidd's statement that would thereby be admissible at trial.[93] Nor was it submitted that Commissioner Tidd's statement constituted an admission on the application itself to the effect that the respondent could not be prejudiced by its inability to investigate the existence of practices and policies in 1960, as it knew that none existed.
[93] See the debate at ts 46 - 48.
First, it was the respondent who had put Commissioner Tidd's statement into evidence on the application.
Secondly, the question was not whether the evidence would be admissible at trial, but whether, for the purposes of the respondent's application, the respondent was in fact prejudiced by the supposed loss of evidence. The evidence adduced by the respondent established that there were in fact no policies, practices, procedures or systems in place to protect children from, or to deal with complaints of, sexual abuse prior to 1997. It could not be said that the respondent was prejudiced by the supposed loss of evidence of these things, as it knew that they did not exist.
Thirdly, the judge overlooked the fact that these matters were not 'merely' findings of the Royal Commission or the subject of Mr Walker's report. Rather, it was Commissioner Tidd's acceptance of Mr Walker's report which constituted a clear admission against interest on the part of the respondent as to the non-existence of practices, procedures and systems to protect children from sexual abuse. It was Commissioner Tidd's statement dated 17 September 2015 which would be admissible in evidence against the respondent.
The judge's findings in relation to the admissibility at trial of the Royal Commission report and Mr Walker's report have been summarised in [50] and [52] above. Moreover, the judge, in terms, referred to the respondent having put into evidence on the application Commissioner Tidd's statement and addressed in terms (as noted at [52] above) the appellant's particular complaint at the time that further inquiries should have been made of Commissioner Tidd. The judge made these findings in response to the submissions before him.
As noted in [106] above, it was not contended before the primary judge that Commissioner Tidd's adoption of Mr Walker's report constituted an admission on the part of the respondent, and that it was Commissioner Tidd's statement that would thereby be admissible at trial. Nor did the appellant submit that Commissioner Tidd's statement amounted to an admission, on the hearing of the application, to the effect that the respondent could not be prejudiced by its inability to investigate the existence of practices and policies in 1960, as it knew that none existed.
In this context, we are not persuaded that the judge erred in 'overlooking' that (1) the respondent had put into evidence Commissioner Tidd's statement on the application, or (2) Commissioner Tidd's statement would be admissible against the respondent, or (3) that there was no question on the hearing of the application as to the admissibility at trial of the Royal Commission report or Mr Walker's report.
Nor do these complaints assist the appellant in any event. Mr Walker's report and Commissioner Tidd's statement both concerned the policies and procedures of TSAS, described at a general level, from a time before their own involvement in the organisation. They do not concern the appellant's specific allegations or anything that Major Watson may or may not have done at the time.
Bearing that in mind, and having regard to our conclusion on Ground 1, Commissioner Tidd's statement establishes that there was no formal procedure for investigating complaints of abuse until 1994 (or 1997, having regard to other evidence). The appellant did not complain until 2014, after Lt Swift's death.
Commissioner Tidd's acceptance of Mr Walker's general conclusions did not, in any meaningful way, override the difficulties the respondent was necessarily faced with in defending the claims of direct and vicarious liability. We are not persuaded that it was incumbent on the judge to place weight on Commissioner Tidd's statement to the Royal Commission in this regard. Any admission that this statement incorporates is of such a general nature that it does not, in our view, overcome the deficit of information facing the respondent with respect to the particular situation at the Home in 1959 and 1960.
The appellant also submitted that any absence of evidence would in fact operate against him at trial, the burden being his. The absence of evidence would surely do so. That, however, was not the question arising on the stay application. The question was whether the respondent could meaningfully defend the action. It remains the case that the respondent is unable to investigate any steps that Major Watson took in response to any report he received, anything by way of admission or denial said by Lt Swift, and what duties TSAS authorised or acquiesced in Lt Swift performing at the Home.
We are not persuaded that the judge erred by failing to have any regard to the statement of Commissioner Tidd. We would dismiss Ground 4.
Conclusion on the appeal
There should be leave to appeal. The order challenged by the appellant has the practical operation of finally determining the appellant's claim. Substantial injustice would result if it was the case that the decision of the primary judge was wrong. In this respect it may be accepted that the decision is attended with sufficient doubt to warrant its reconsideration. In the circumstances the appellant has established a good basis for leave to appeal. However, for the reasons given, the appeal must be dismissed.
The cross-appeal
Following the delivery of the primary judgment, the respondent made an application for the costs of both the stay application and the action.
The respondent sought party/party costs of the action and the application up to and including 14 April 2021 and thereafter on an indemnity basis. It sought the indemnity costs order on the basis that on 14 April 2021 it had made a written Calderbank offer. The letter containing this offer identified the basis of its application for a stay and included terms for the payment to the appellant of $200,000 without deduction for Medicare or Centrelink and costs of up to $90,000. The offer was expressed to be open for 14 days.
The judge ruled ex tempore on the respondent's costs application, making no order as to costs. On the respondent's cross-appeal from that decision, we will continue to refer to the appellant and the respondent as on the substantive appeal.
The judge noted the orthodoxy that costs are in the discretion of the court and that the Rules provide that costs ordinarily should follow the event. His Honour also noted that the effect of making a Calderbank offer was essentially the same as the effect of an offer made under r 42A of the District Court Rules 2005 (WA).
The judge reasoned, however, that there were several factors that justified departing from the ordinary rule.
First, his Honour considered that the application was brought 'in the context of a very unique statutory regime',[148] specifically the removal, from 1 July 2018, of the time limit in respect of child sexual abuse actions by s 6A of the Limitation Act.
[148] ts 72.
The primary judge then referred to what he described as 'strong public interest factors' in permitting claims for damages for the sexual abuse of young children to be brought, which underpin the removal of the time limit.[149] He referred to a statement of Shepherd DCJ in Ugle v Masters, that:[150]
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 in such cases which of itself can be of the public interest. (citations omitted)
[149] ts 72.
[150] Ugle v Masters [2021] WADC 8 [41].
Against this background of statutory context and public interest, the judge noted that the appellant had brought the action with appropriate speed once s 6A of the Limitation Act came into force.
The judge then observed that the decision to stay an action permanently was only ever to be exercised in an exceptional case. His Honour considered this to be such a case. He was considering exceptional legislation allowing the action to be commenced some 60 years after the alleged abuse and a power to stay that same action which was only to be exercised in exceptional circumstances.
Finally, the judge took into account that the discretion to order costs is to be exercised in the interests of justice. He considered that here, the interests of justice allowed the court to take into account 'compassionate and probably even merciful considerations' in what he again described as exceptional circumstances.[151] His Honour concluded:[152]
We don't do that often, but there are cases where the justice is able to take into account particular circumstances of the scenario. The evidence before me was compelling as to the fact that the plaintiff suffered very serious sexual abuse at the hands - whilst in the care of the Salvation Army home and that that has had a lifelong impact upon him.
The nature of the delay meant that from an objective perspective the defendant was not able to meaningfully defend the claim. That had the consequence that it was not a claim that can be appropriately dealt with in the context of the adversarial justice system, hence the exceptional circumstances of the stay.
Having said that for the reasons that I've just identified it is also an appropriate case to take the somewhat exceptional position of making no order as to the costs of the action and no order as to the costs of the application.
[151] ts 73.
[152] ts 73.
The sole ground of cross-appeal is that the decision 'stands outside the limits of a sound discretionary judgment'. In substance the respondent contends that the decision to make no order as to costs is unreasonable or plainly unjust. In that respect the respondent contends on its cross-appeal that the judge erred in exercising his discretion to make no order as to costs in circumstances where:
(a)the respondent was wholly successful in its application and the action;
(b)the appellant brought the action to assert his personal rights and to obtain a private benefit by way of damages;
(c)the respondent had made a Calderbank offer in the terms described above;
(d)the stay application was not brought in a 'very unique statutory regime'; and
(e)neither the exceptionality of a stay being ordered, nor the general considerations of the 'interests of justice', considered separately or together, outweighed the above factors.
The power to award costs is discretionary. The respondent submitted, in House v The King terms, that the factors listed above were not taken into account. It also alleged that they were not given sufficient weight. It further attacked the order in the language of outcome error - a contention which better reflected the ground of cross-appeal as formulated - submitting that the decision not to award any costs to it was so unreasonable that it was outside the limits of sound discretionary judgment. The respondent's starting point was the general rule that a successful party will be entitled to an order for costs:[153]
The jurisdiction of the court to award costs is conferred by s 37 of the Supreme Court Act, which gives the court a broad discretion as to costs, albeit it is a discretion that must be exercised judicially. The general rule, however, is that the successful party will be entitled to an order for its costs: O 66 r 1 of the Rules of theSupreme Court 1971 (WA). As McHugh J explained in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11:
The principle [that a successful party is generally entitled to an order for costs] is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation [67].
[153] The State of Western Australia v Collard [2015] WASCA 86 [25] (Buss, Newnes & Murphy JJA).
Ordinarily, the general rule provides a just outcome because the party who turns out to have unjustifiably either brought another party before the court, or given another party cause to have recourse to the court to obtain his or her rights, should be required to recompense that other party in costs.[154]
[154] Gray v Sirtex Medical Ltd [2009] WASC 126 [62].
There remains a broad discretion. Having said that, the authorities have recognised the need for 'special circumstances' to justify departing from the usual order. In Roe v The Director General, Department of Environment and Conservation for the State of Western Australia,[155] this court said:
The use of the expression 'special circumstances' to describe those occasions upon which it will be appropriate for a court to depart from the usual order as to costs emphasises the rare and exceptional character of those occasions. That observation is borne out by the fact that the applicant has been unable to point to any instance before this court where no order as to costs has been made in public interest litigation. The rare and exceptional character of the circumstances required to justify a departure from the usual order has been emphasised in a number of decisions in this court: see for example Southwest Forest Defence Foundation (Inc) v Land and Forest Commission (No 2) [5] ‑ [6]. In Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55, after considering the decision in Oshlack, the court observed that:
[G]reat care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner [11].
[155] Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S) [13] (Martin CJ & Murphy JA).
At the outset, it is to be observed that insofar as the complaint on the cross-appeal alleges that insufficient weight was given to relevant considerations, that is not a proper basis upon which to grant leave to appeal. Failure to give adequate weight, or giving too much weight, to a relevant consideration does not give rise to a relevant error, unless the failure really amounts to a failure to exercise the discretion actually entrusted to the court.[156]
[156] Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519; Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 [36].
As to the first factor relied on by the respondent, the general rule that a successful party should have its costs is generally directed to a consideration of the litigation as a whole.[157] Ordinarily, the power is exercised after a hearing on the merits.[158] In this case, it is to be recognised that there has never been a resolution of the appellant's claims in tort on the merits, given that this is one of those exceptional cases where the court has exercised its power to prevent an abuse of process to permanently stay the proceedings. The significance of this is discussed further in relation to the fourth factor.
[157] O'Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) (1995) 55 FCR 591, 598.
[158] Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624.
As to the second factor, the judge was plainly aware that the appellant was pursuing litigation in his private interest. It cannot be inferred that the judge had excluded any consideration of that factor.
As to the third factor relied on by the respondent, that it had made a Calderbank offer in the terms set out above, it is true that the judge did not, in his short, ex tempore ruling, refer to the offer. The respondent relied heavily on this failure and, indeed, emphasised it insofar as its cross‑appeal invoked outcome error in the exercise of the discretion. It also submitted that the judge should have found that the appellant acted unreasonably in not accepting the offer.
There is considerable force in the respondent's submissions as abstract propositions. However, the respondent relied on the Calderbank offer before the primary judge only in support of its application for indemnity costs from 14 April 2021. It did not rely on it as a discretionary consideration relevant to whether the usual rule should be adhered to at all. Whilst the respondent has, on the cross‑appeal, abandoned its claim for indemnity costs for the period after 14 April 2021, its position on the appeal does not alter the way it approached the matter before the primary judge.
It is problematic to argue now that the primary judge erred in not bringing the offer to account in a way for which the respondent did not argue. Neither is this argument so obvious and compelling that it did not require specific advertence at first instance. On its face, it was relevant to the discretion to award indemnity costs from the date of the offer. If it was to be relied upon in the manner now articulated, that is, as relevant to the general discretion as to costs on both the application and the action, it was necessary to do so expressly and to explain why it had that broader relevance, including as to before 14 April 2021.
As to the fourth factor identified above, the respondent took particular issue with the judge's characterisation of the application being brought in a 'very unique statutory context'. From the judge's short remarks, we understand this characterisation to be referring to the fact that the appellant was only able to bring the application following removal of the time limit. Further, he did so expeditiously and was thereby faced with a stay application that was a function of the very delay occasioned by the failure to remove the time limit any earlier.
The respondent pointed out that this is not a unique situation, in that there have been a number of successful stay applications of claims in respect of child sexual abuse in various jurisdictions.[159] It identified that costs were ordered in the defendant's favour in Trinity Grammar.
[159] GMB at first instance; Grant v Bird; Connellan v Murphy; Moubarak; Trinity Grammar.
We would not interpret the judge's phrasing as meaning that s 6A of the Limitation Act is 'unique' when compared with other, similar regimes. The 'statutory context' of the removal of time limits in child sexual abuse cases, which is not limited to Western Australia, places putative plaintiffs in a position that is unusual when compared with litigants in general. Read fairly, it is that to which his Honour was referring when he referred to a 'very unique statutory regime'. In our view, his Honour was entitled to take that into account in his consideration of whether the appellant should pay the costs of the action. The Parliament has evidently recognised a public interest, through the removal of the time limits, in victims of child sexual abuse being able to pursue their claims, however long it has taken for that facility to become available, subject to the court's control over its own processes to prevent abuse. The reasonableness of, and public interest in, the appellant bringing the action in the first instance were, it may be accepted, relevant to the approach to be taken to the costs of the action.
However, the stay application involved different considerations. Accepting that a stay will only be granted in exceptional circumstances, there are well developed principles that inform the discretion. The principles are well understood. They are set out earlier in these reasons. The judge had careful regard to them in granting the application,[160] referring to the various authorities as distilled most recently by Bell P in Moubarak.
[160] Primary reasons [15] - [22].
The stay application was premised on the respondent's inability meaningfully to defend the action. The appellant had to engage with the evidence that supported that inability (and, with respect, did). Whether or not a defendant can fairly defend a claim remains a matter of disinterested assessment, based on the evidence available. The question of the costs of the stay application involved a consideration of what was appropriate in the interests of justice, having regard to the resolution of the issues raised by that particular application. In our view, the judge's apparent wholesale application of the considerations going to the reasonableness of and public interest in the appellant commencing the action, to the question of the costs of the stay application, constituted error. It led, as will be seen, to a decision that was unreasonable or plainly unjust.
The fifth factor relied on by the respondent is that neither the exceptionality of a stay being ordered, nor the general considerations of the 'interest of justice', considered separately or together, outweighed the above factors. Inherent in this contention, which seemed to be directed at a submission of outcome error, is the reliance placed on the Calderbank offer, the significance of which we have rejected.
The cross-appeal requires leave. The respondent addressed this in oral submissions. It offered three reasons why leave should be granted. The first was the existence of the Calderbank offer. The respondent submitted that against the background of that offer, the result that it should receive none of its costs was so perverse as to warrant appellate intervention.
The second reason was that the matters identified by the judge as warranting such a departure from the usual rule ought to be the subject of a properly reasoned judgment by this court.
The third was that if the primary judge's approach was correct, then Western Australia would appear to be diverging from the approach in similar cases in other parts of the country, which would warrant a reasoned explanation by this court.
For the reasons set out above, we do not think that the existence of the Calderbank offer provides a persuasive reason to grant leave to appeal. Generally speaking, the question of whether to grant leave to appeal looks to whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal, and whether allowing the decision to stand would work a substantial injustice to the applicant.[161]
[161] Wilson v Metaxas [1989] WAR 285, 294.
We would not grant leave to appeal against the costs order insofar as it applied to the costs of the action. To make no order for costs on the action was, in our view, within the discretion of the judge, in the circumstances of this case. The appellant properly commenced the action and the respondent properly advanced the materials providing the basis upon which it said that the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. It was open to conclude that the interests of justice were served by each party meeting its own costs of the action. That is all the more so where, due to the order permanently staying the proceedings, there has been (and can be) no determination of the appellant's claim on the merits.
However, we consider that the discretion miscarried in making no order as to costs on the stay application.
The stay application concerned the capacity of the respondent to defend the action. The respondent obtained a stay by the application of orthodox principle. Although the stay application was interlocutory, it was a discrete proceeding the outcome of which would finally determine, in a practical way, the future exercise of the appellant's asserted rights against the respondent. The respondent was the successful party in a proceeding in which it was appropriate to apply, by analogy, the general rule referred to earlier. There was no disentitling conduct on the part of the respondent. For the reasons given at [205] ‑ [206] above it was wrong to apply the considerations going to the reasonableness of and the public interest in the appellant commencing the action to the question of the costs of the stay application. In all the circumstances the primary judge's decision to deprive the respondent of a favourable costs order - by making no order as to the costs of the stay application - was unreasonable or plainly unjust. The ground of cross-appeal should be allowed to this extent.
To not disturb the order as to costs on the stay application would, in our view, work a substantial injustice on the respondent. We grant leave to cross-appeal against the costs order insofar as it relates to the application for the stay, allow the cross‑appeal to that extent, and order that the appellant is to pay the respondent's costs of the application for the stay, on a party/party basis.
We refuse leave to appeal against the order that there be no order as to the costs of the action.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JL
Associate to the Honourable Justice Murphy
17 FEBRUARY 2023
- AGLC
- RC v The Salvation Army (Western Australia) Property Trust [2023] WASCA 29
- Case
- [2023] WASCA 29
- Decision Date
CaseChat Overview and Summary
The key legal issue before the court was whether the judge was correct to grant a stay of proceedings in light of the plaintiff's allegations of sexual abuse by Lt Swift, who had died before the defendant was made aware of the allegations. The plaintiff argued that the judge should not have granted a stay, and that the defendant should have been required to answer the allegations made in the Statement of Claim. The court was required to consider whether the judge had correctly applied the relevant legal principles in granting a stay of proceedings.
The court found that the judge had correctly granted a stay of proceedings. The court held that the death of Lt Swift, who was unable to respond to the allegations made by the plaintiff, was a significant factor in favour of a stay. The court further held that this was not a case like WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) where the defendant had an opportunity to investigate the allegations made against the alleged perpetrator while he was still alive. The court also noted that the respondent had been unable to identify any other officer who worked at the Home at the relevant time who was still alive and able to provide relevant information. The court held that the judge had correctly applied the relevant legal principles in granting a stay of proceedings.
The court dismissed the appeal and affirmed the grant of a stay of proceedings by the judge. The court held that the judge had correctly granted a stay of proceedings in light of the plaintiff's allegations of sexual abuse by Lt Swift, who had died before the defendant was made aware of the allegations. The court held that the death of Lt Swift was a significant factor in favour of a stay, and that the respondent had been unable to identify any other officer who worked at the Home at the relevant time who was still alive and able to provide relevant information. The court further held that the judge had correctly applied the relevant legal principles in granting a stay of proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The first matter that the judge considered supported the grant of a stay was the fact that 'Lt Swift died well before the defendant was first made aware of the plaintiff's allegations'.[35] Lt Swift was unable to respond; the judge recognised that this was a significant factor in favour of a stay.[36] Importantly for the appellant's complaint in Ground 1 of the appeal, his Honour further observed:[37]Nor is this a case like WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [[2020] VSC 639 [93], [208] - [212] (Keogh J)] 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 [sic] the perpetrator while he was still alive, with there being a likelihood that further relevant evidence would be discovered on reasonable inquiry.[35] Primary reasons [141].[36] Primary reasons [141], citing Moubarak [163] - [169] (Bell P); Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776 [22] (Beech-Jones J); Chalmers v Leslie [2020] QSC 343; (2020) 6 QR 547; GMB v UnitingCare West [2020] WADC 165 (GMB at first instance).[37] Primary reasons [141]. The judge then turned to other witnesses. The person believed to be Major Watson died in 1968. The widow of Lt Swift died in 2019 and appeared to have suffered from significant memory issues for about two years before that. The children of Lt Swift were unable to provide any substantive information. Notwithstanding extensive inquiries, the respondent had been unable to identify any other officer who worked at the Home at the relevant time who was still alive and able to provide relevant information.[38][38] Primary reasons [51] - [54]. The judge referred to several authorities where the death of relevant witnesses featured as a factor in favour of a grant of a stay. In Trinity Grammar, the claimant alleged he had been assaulted between 1974 and 1976 by a teacher, 'Futcher', at his preparatory school. He claimed that, in 1975, he made a complaint to one Reverend Sandars, the Master in Charge of the preparatory school. Reverend Sandars died in 2012. The school had previously been notified of the claimant's intention to institute proceedings, but the claimant had not further responded to the school's request for an explanation of the basis on which liability was said to arise. The evidence was that Reverend Sandars had largely exercised sole control of the operation of the preparatory school, without any ongoing operational supervision. Bathurst CJ observed:[39]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 … they allege … 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.[39] Trinity Grammar [459].