The Council of Trinity Grammar School v Anderson

The Council of Trinity Grammar School (the applicant) sought a permanent stay of proceedings brought by a former student (the respondent) who alleged sexual assaults by a teacher between 1974 and 1976. The alleged abuse did not occur on school grounds. The applicant appealed to the Court of Appeal of New South Wales after the primary judge refused to grant a permanent stay.

The Court of Appeal was required to determine whether the primary judge erred in exercising their discretion to refuse a permanent stay, whether the discretion should be re-exercised, and whether the applicant had made adequate inquiries to ascertain if material was available to defend the claim. The Court also considered whether the applicant was responsible for its difficulties in dealing with the proceedings due to not investigating the claim earlier. A key legal issue involved the application of s 6A of the *Limitation Act 1969* (NSW), which provided for the legislative removal of previous limitation periods in cases of personal injury, including child abuse.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in the exercise of discretion. The Court reasoned that the passage of time, the lack of available evidence, and the potential prejudice to the applicant were significant factors. The Court concluded that the respondent's claim, while serious, could not be fairly tried given the circumstances. The Court re-exercised its discretion and ordered that the proceedings be permanently stayed.