Ugle v Masters - [2021] WADC 8

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   UGLE -v- MASTERS [2021] WADC 8
CORAM:   SHEPHERD DCJ
HEARD:   30 OCTOBER 2020
DELIVERED          :   27 JANUARY 2021
FILE NO/S:   CIV 105 of 2020
BETWEEN:   KEVIN DUNCAN UGLE
Plaintiff
AND
LLOYD ARTHUR MASTERS
Defendant

Catchwords:

Civil procedure - Stay application - Historic child sexual abuse action - Alleged offending occurred 56 years ago - Significant delay - Defendant's medical conditions - Defendant's ability to receive a fair trial - Stay refused

Legislation:

Evidence Act 1906 (WA), s 36BD
Limitation Act 2005 (WA), s 6A

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr C J Foyle
Defendant	:	Mr A P Hershowitz

Solicitors:

Plaintiff	:	Foyle Legal
Defendant	:	Lewis Holdway Lawyers

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

Anderson v The Council of Trinity Grammar School [2018] NSWSC 1633
Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd [2003] NSWSC 618
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Chalmers v Leslie [2020] QSC 343
Connellan v Murphy [2017] VSCA 116
Estate Judd v McKnight (No 4) [2018] NSWSC 1489
GMB v UnitingCare West [2020] WADC 165
Gorman v McKnight [2020] NSWCA 20
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218
Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197
R v Davis (1995) 57 FCR 512; (1995) 81 A Crim R 156
R v Edwards [2009] HCA 20; (2009) 225 ALR 399
R v Jacobi [2012] SASCFC 115; (2012) SASR 227
R v Presser [1958] VR 45
R v Rivkin [2004] NSWCCA 7; [2004] 59 NSWLR 284
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Ward v Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776
WCB v Roman Catholic Trust Corporation for the Diocese of Sale (No 2) [2020] VSC 639
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164; (2019) 98 SR (WA) 367

SHEPHERD DCJ:

Introduction

The defendant applies by chamber summons dated 7 September 2020 for orders that the plaintiff's writ of summons dated 12 January 2020 be set aside and stayed permanently or stayed until further order.
The plaintiff claims damages arising from allegations of child sexual abuse committed whilst the plaintiff was in the care of the defendant at Roelands Mission between 1960 to 1964.[1]
[1] Roelands Mission is variously referred to by the plaintiff as Roelands Mission or Roelands Native Mission Farm. In these reasons it is referred to as Roelands Mission.
The plaintiff had been declared a neglected child and taken from his parents and committed to the care of the Child Welfare Department.
The defendant was employed as the assistant superintendent in charge of the Roelands Mission at the relevant time.
The plaintiff alleges two separate incidents whereby he was indecently dealt with by the defendant in the defendant's house between 1960 and 1964.[2]
[2] Pleaded variously as 'between 1960 to 1963' (statement of claim dated 4 August 2020, filed 24 August 2020, par 5) and 'in or about 1964' (statement of claim, particulars of the abuse).
The two incidents, approximately six months apart in time, involved allegations that the defendant indecently dealt with the plaintiff's penis and testicles.
The plaintiff left Roelands Mission in 1966.[3]
[3] Statement of claim dated 4 August 2020, filed 24 August 2020, par 4.
By way of preliminary remarks it is difficult to see on what basis the defendant seeks to stay the writ of summons until further order if the permanent stay sought is not granted. Either the action is stayed permanently or the defendant's application fails.
I therefore treat the defendant's application to set aside (strike out) the writ of summons synonymously with the application for a permanent stay.

The defendant's application

The basis of the defendant's application for a permanent stay can be distilled into two parts:
1.The defendant's medical condition comprising:
(a)his physical health, including most significantly, his risk of further (and fatal) stroke; and
(b)his cognitive impairment including memory loss.
2.The effect of the delay since the factual allegations are said to have occurred on the defendant's ability to marshal a defence to the plaintiff's action by reason of:
(a)a loss of physical evidence; and
(b)the effect of the effluxion of time on the memories of potential witnesses including that of the defendant.
At the time of this application the defendant is aged 87 with the events the subject of the claim occurring 56 years ago.
The defendant argues that by reason of a combination of the defendant's advanced age and his physical and mental conditions together with the significant delay it is impossible for him to now receive a fair trial.

The issues for determination

The determination of this matter requires an examination of the following issues:
1.The legal principles to be applied in staying an action.
2.The relevance of delay in the assessment of whether the defendant can receive a fair trial.
3.The test to be applied in determining whether the defendant is able to receive a fair trial.
4.An assessment of the evidence of the defendant's medical conditions, physical and mental, on whether the defendant can receive a fair trial.
5.Application to the facts and determination.
The issues identified often overlap and ultimately the question of whether the defendant can receive a fair trial falls to be determined by an assessment of all of the circumstances of the case.

The legal principles to be applied in staying proceedings

It is a fundamental principle that a plaintiff is entitled to have his or her action tried in the ordinary course of the procedure and business of the court, subject to the inherent jurisdiction of a court to stay proceedings if the interests of justice so demand.[4]
[4] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509.
The onus of satisfying a court that an order should be made for a permanent stay lies squarely on the defendant and it should only be granted in exceptional circumstances,[5] when the interests of the administration of justice so demand.[6]
[5] Williams v Spautz [42]; Jago v District Court of New South Wales [31], [76].
[6] Jago [30], [74]; Williams v Spautz [18], [20]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [12].
The categories of cases in which a permanent stay may be ordered are not closed. One category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive.[7]
[7] Jago [74]; Walton v Gardiner [23].
The continuation of proceedings may be oppressive if that is their objective effect[8] or where their effect is 'seriously and unfairly burdensome, prejudicial or damaging'.[9]
[8] Batistatos v Roads and Traffic Authority of New South Wales [70].
[9] Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197, 247 (Deane J); Jago [74]; Batistatos [70]; Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218 (and the summary by Bell P).
Proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party[10] or where their continuation would bring the administration of justice into disrepute amongst right‑thinking people.[11]
[10] Walton [23]; Batistatos [6].
[11] Walton [23]; Batistatos [6]; Moubarak by his tutor Coorey v Holt [71].
Generally, courts have been less inclined to grant a stay in civil proceedings compared with criminal proceedings and the criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context.[12]
[12] Jago [2]; ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164; (2019) 98 SR (WA) 367 [14] (Sleight CJDC).
The rationale has been stated to be:[13]
The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by the State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice.
[13] Williams v Spautz [20]; Batistatos [8].
These considerations are not present with the same force in civil litigation where the moving party is not the State enforcing the criminal law.[14]
[14] Batistatos [8].
The granting of a permanent stay is made only in exceptional circumstances because it brings to an end litigation without adjudication.[15]
[15] Batistatos [159], [185]; ZYX(pseudonym initials) v JD (pseudonym initials) [8].
The defendant bringing the application accordingly bears a heavy onus.

The relevance of delay and a fair trial

Part of the basis for the defendant's application for a stay of proceedings lies in the fact that the allegations that give rise to the plaintiff's action for damages took place between 1960 and 1964, some 56 to 60 years ago.
Undoubtedly that is a delay of considerable significance.
The fact of delay alone does not give rise to unfairness. Delay by itself will not normally justify a stay.[16]
[16] ZYX [46].
As former Chief Judge Sleight DCJ explained in ZYX,[17] there has been recognition that in cases of sexual abuse there may be understandable and legitimate reasons why a complainant might not come forward and make a complaint.
[17] ZYX [44] - [49].
Section 36BD of the Evidence Act 1906 (WA) recognises that delays in a person complaining about sexual abuse can often occur for legitimate reasons.
The plaintiff's application for damages for child sexual abuse is made possible by the amendments to the Limitation Act 2005 (WA)(the Act). By virtue of the amendments, s 6A of the Act provides that there is no limitation period for a child sexual abuse cause of action.
The amendments were a response to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse which recognised that a delay of some magnitude is not unusual for persons who have suffered sexual abuse.[18]
[18] ZYX [58] citing Redress and Civil Litigation Report, page 444.
Similar, albeit not identical, reforms have been enacted in all other Australian States and Territories.
A child sexual abuse cause of action is defined as meaning 'a cause of action that relates, directly or indirectly, to a personal injury of the person to whom the cause of action accrues, where the injury results from the child sexual abuse of the person'.
Prior to the introduction of s 6A of the Act, which came into force in July 2018, the plaintiff was unable to commence a claim for damages for child sexual abuse as such a claim was statute barred.
These proceedings were commenced 18 months after the introduction of s 6A and therefore after the removal of any limitation period.
Given the removal by the legislature of any limitation period for the bringing of such claims, there cannot be any criticism of the plaintiff in bringing his action so long after the events which found the claim factually.
It is noted that the plaintiff complained to Western Australian police in at least 2008, some 13 years ago, about the allegations of child sexual abuse against the defendant.[19]
[19] The documents produced by the plaintiff demonstrate that the Western Australian police investigated the plaintiff's complaints, as did the Director of Public Prosecutions in other Australian jurisdictions, namely Tasmania with Victorian police assisting Western Australian police in interviewing the defendant in 2010. Decisions were made not to present an indictment against the defendant in Tasmania and to discontinue criminal proceedings against the defendant in Western Australia upon an application of the applicable prosecutorial guidelines. Those decisions applying different criteria in the criminal jurisdiction do not bind this court in determining this application.
There are strong public interest factors in permitting claims for damages for sexual abuse of children to be brought at any time.
Those public interest factors underpin the removal of the limitation period by the legislature.
Such is the extent of the public interest in having claims of this kind brought forward that the removal of the limitation period was intentionally made retrospective by Parliament.
The courts have reflected the strong public interest in claimants having the opportunity to present their allegations in court and there may well be a significant therapeutic benefit and a sense of closure for claimants concerned in such cases which of itself can be in the public interest.[20]
[20] See for example R v Jacobi [2012] SASCFC 115; (2012) SASR 227, 256 (Nicholson J), albeit in a criminal context, but equally apposite to civil claims of this nature.
It is not, however, without boundaries.
So much is recognised expressly by the s 6A(5) of the Act which 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.
Delay in commencing proceedings may give rise to oppression so as to justify the court exercising its inherent jurisdiction to stay the action on grounds of an abuse of process or, alternatively, on the discretionary ground that the defendant cannot receive a fair trial.[21]
[21] As to which see the summary in ZYX [7] - [17]; Batistatos [15].
The delay, however, between the factual events that ground a claim of this nature and the commencement of proceedings has potential significance on the question of whether a defendant can receive a fair trial.
Unfairness may arise from the 'effluxion of time' because of the effect of the delay on the trial process.[22]
[22] Moubarak [77] and following.
That may arise through the impoverishment of evidence, either the destruction of physical evidence such as buildings, photographs or plans, or through the impoverishment of a witness' memory and recollection.
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.[23]
[23] Moubarak [77].
As Bell P noted in Moubarak, 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 are well known to the law.[24]
[24] Moubarak [77]
In Longman McHugh J said:[25]
The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. The longer the period between an 'event' and its recall, the greater the margin for error. Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine.
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be …
To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.
[25] Longman v The Queen [1989] HCA 60 [107] - [108]; (1989) 168 CLR 79; Moubarak [80].
The fact that these observations were made in the context of a criminal case where the accused was charged with historic sexual offending are applicable to an assessment of whether a defendant can receive a fair trial in a civil trial heavily dependent on oral evidence.[26]
[26] Moubarak [81].
Unfairness by reason of delay may also arise in the ability of a defendant to be able to answer the case against him or her, not only by reason of loss of evidence of loss of memory, but by reason of a decline in the defendant's health which impacts on his or her ability to marshal a defence or, as is asserted in this case, to participate in the trial process leading to an inability to receive a fair trial.
A fair trial does not necessarily mean a perfect trial.[27]
[27] Moubarak [89].
The High Court observed in R v Edwards:[28]
... Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.
[28] R v Edwards [2009] HCA 20 [31]; (2009) 225 ALR 399.
The mere absence of documentary evidence or the absence of a witness through death or incapacity does not have the automatic consequence that a trial will be unfair or that a permanent stay should be grated.
Just because a court will be asked to determine proceedings with incomplete facts does not make the trial thereby unfair.[29]
[29] R v Edwards [31]; Bastitatos [228].
Whilst the absence of a witness or witnesses, or the loss of documents will not necessarily preclude the possibility of a fair trial, in certain circumstances, they may.[30]

The test for determining a fair trial

[30] R v Davis (1995) 57 FCR 512; (1995) 81 A Crim R 156.

Smith J in R v Presser[31] set out what is required for a person to be tried without unfairness or injustice to him. The observations of Smith J in Presser have been applied in a number of subsequent decisions and were summarised by the High Court in Kesavarajah v The Queen as follows:[32]
In Reg v Presser, Smith J. elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice. Those standards, which are based on the well‑known explanation given by Alderson B. to the jury in R v Pritchard, require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.
[31] R v Presser [1958] VR 45.
[32] Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230, 245.

In R v Rivkin[33] the court held that so long as the accused can understand and follow the proceedings in each of its facets, can give appropriate instructions, and can present a proper defence to the charge, he or she is to be regarded as fit to be tried. The fact that the accused may have done so in a better way, had suitable medical treatment or medication been provided, or had the accused possessed greater intelligence or acuity of mind, does not seem to be relevant to the question of fitness.
[33] R v Rivkin [2004] NSWCCA 7; [2004] 59 NSWLR 284.
In Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd[34] the first defendant brought an application that proceedings initiated against him by ASIC be vacated on the basis that he was not fit to be tried.
[34] Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd [2003] NSWSC 618.
Campbell J stated in respect of the application of the Presser test:[35]
That test, while it cannot be transposed directly to the circumstances of civil proceedings, still lists the factors of mental capacity which it is necessary for someone who is a defendant in civil proceedings to have. It needs to be supplemented to include being able to follow and give instructions about the pre-trial documentation which is involved in civil proceedings.
[35] Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd [33].
Bell P in Moubarak agreed with the observations of Campbell J in Australian Investors Forum that whilst Presser cannot be translated directly into a civil context it nonetheless has relevance to a consideration of the circumstances required for a fair trial.
Bell P held that the Presser criteria provides powerful insight into matters going to the very essence of a fair trial, including the ability to give instructions, to decide what defence will be relied on and to make the defendant's version of facts known to the court and his counsel.[36]

Other cases involving applications for stay of proceedings

[36] Moubarak [108].

It is useful to briefly consider other authorities in which applications for a stay of proceedings were brought.
They were examined by his Honour Chief Judge Sleight in ZYX[37] and by Bowden DCJ in GMB v UnitingCare West.[38]
[37] ZYX [51] - [57].
[38] GMB v UnitingCare West [2020] WADC 165 [48] ‑ [76].
In Estate Judd v McKnight (No 4)[39] the court rejected an application for a stay of proceedings.
[39] EstateJudd v McKnight (No 4) [2018] NSWSC 1489; considered in ZYX [56].
In Judd three claims for damages in respect of sexual offending alleged to have been committed by Mr Judd between 1978 and 1993 were brought against his estate.
The three claims were brought against Mr Judd's estate in May 2016, after Mr Judd's death.
The defendant prior to his death and after having been charged by police gave some instructions to his solicitor, however, there was only a partial account of his conduct obtained prior to his death.
Each of the claimants was alive and was able to be cross‑examined and challenged on their respective account of events and all of the surrounding circumstances.
The credibility of the claimants was able to be challenged having regard to their criminal histories (if any) and other material which may reasonably have been available about their conduct and reputations; previous histories and accounts given to medical practitioners and statements to police could be examined and challenged where appropriate.
The individuals to whom those accounts and statements were given were all alive and available to be cross‑examined.
There was still in existence buildings at which the events the subject of the allegations were said to have occurred.
There were documents from third parties against which the accounts of the claimants could be confirmed or challenged or disproved.
The court noted that the period of delay was such as to have made it more difficult for the estate to defend the proceedings but it was not such as to overcome the heavy burden on the defendant to establish that it would be unable to receive a fair trial.
In The Council of Trinity Grammar School vAnderson[40] the respondent brought a complaint in 1997 alleging that he was sexually assaulted by a teacher whilst at school between 1969 and 1976. Proceedings were commenced 40 years after the alleged offending.
[40] The Council of Trinity Grammar Schoolv Anderson [2019] NSWCA 292; (2019) 101 NSWLR 762.
The central issue was not whether the alleged offending occurred but whether the defendant (school) was vicariously liable or owed a non‑delegable duty of care.
In The Council of Trinity Grammar School vAnderson the master in charge of the preparatory school at the time of the alleged assaults was deceased.
The court pointed out that the claim for vicarious liability depended on the role that the employer assigned to the employee and whether its performance gave the occasion for the wrongful act.
That involved considering whether the employee teacher was placed in a position of power and intimacy as regards the plaintiff which gave rise to the wrongful acts such that they could be regarded as having been committed in the course of the teacher's employment.
In addition to the absence of the former master as a key witness, there was also an absence of any records from the time to show the existence or non-existence of systems or procedures to protect students from abuse.
The school was therefore not in a position to ascertain whether it acquiesced in or authorised the alleged perpetrator of the assaults to engage in a number of activities in the course of which it was alleged that the assaults took place.
Because of the effluxion of time, the unavailability of witnesses and the absence of documentation concerning the attendance of pupils at camps the school was unable to deal in any meaningful fashion with the critical question of whether the alleged perpetrator of the assaults was placed by the school in a position of power and intimacy which gave the occasion for the wrongful acts.[41]
[41] Anderson [468] ‑ [477].
The Court of Appeal granted the stay application.
In Connellan v Murphy[42] the court upheld an application for a stay.
[42] Connellan v Murphy [2017] VSCA 116.
In that case the in 2016 the plaintiff commenced proceedings alleging that the defendant sexually assaulted her on two occasions in or around 1967 or 1968 while she was residing at the defendant's family home for a period of 7 to 10 days.
At the time the plaintiff was 6 or 7 years of age and the defendant was aged 13 or 14.
The delay was one of 48 to 49 years.
The Court of Appeal upheld the application for a combination of reasons including the defendant having to defend the action based on his conduct over a short period of time when he was 13 years of age; neither side was able to properly investigate the relevant surrounding circumstances, the vagueness of the plaintiff's recollection and the fact that all principal witnesses, who were adults at the time, were deceased.
In Moubarak the appellant was alleged to have sexually assaulted his niece 42 years previously.
Significantly on the facts of that case, the appellant was suffering from advanced dementia at the time the proceedings were commenced.
That rendered the appellant unfit to give evidence and unfit to give instructions during the course of the trial or for the purposes of marshalling a defence.
Prior to the onset of the appellant's dementia the plaintiff had never confronted him about the allegations, neither had there been a complaint to police.
There was no documentary evidence in existence that would bear upon the likelihood of the alleged sexual assault having occurred.
The fact that the incident occurred 42 years previously and that other potential witnesses were dead or unavailable whilst by itself insufficient to grant a stay, were matters considered by the court in combination with all the other matters.
Bell P in recognising that the plaintiff could be cross‑examined to explore inconsistencies in her evidence concluded that by reason of the appellant's mental condition he was 'utterly in the dark' about the allegations and unable to give instructions in relation to them.[43]
[43] Moubarak [158], [162] ‑ [171].
Bell P found that it would not be possible for the appellant now to obtain a fair trial.
Leeming AGA concluded that a fair trial was impossible as the appellant could not speak, understand, communicate, give instructions, nor give evidence in circumstances where decades had past and he had never been confronted with the detail of the allegation.[44]
[44] Moubarak [196].
Accordingly the court granted the stay.
In Ward v Trustees of the Roman Catholic Church for the Diocese of Lismore[45] the alleged perpetrator of the sexual offending, a parish priest, had died in excess of 60 years prior to the commencement of the proceedings.
[45] Ward v Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776.
There was nothing to suggest that during his lifetime the parish priest or the defendants were confronted with the allegations now brought by the plaintiff; there were no documents in existence that might bear upon the allegations and neither was there any suggestion that there were any such documents.
There was no opportunity to investigate the allegations during the parish priest's lifetime or even after he had died.
Beech‑Jones J concluded that the defendants were 'utterly in the dark about the allegations made' and that there was no material of any kind to enable the defendants to evaluate now the plaintiff's claim.
The defendants were not in a position to determine whether to admit or to deny any relevant fact and could not meaningfully participate in the proceedings.
They could not be relieved of the consequences of the effect of the passage of time and it was not possible now for a fair trial to be conducted.
A stay was granted.
In the recent decision of Gorman v McKnight[46] three actions were brought against an estate by three individuals who allege that a deceased person had sexually assaulted them whilst they were minors.
[46] Gorman v McKnight [2020] NSWCA 20.
The assaults were alleged to have taken place between 25 to 40 years prior to the commencement of the proceedings.
The allegations were made whilst the deceased was alive and in a position to discuss them with his lawyer. A pretext call had been made between the deceased and one of the plaintiffs.
The deceased had been arrested and charged but died before the stay application was sought.
The deceased's lawyer gave evidence about the deceased's instructions.
The Appeal Court concluded that in light of those instructions the existence of sexual interactions between each of the plaintiffs and the deceased could not seriously be put in issue.
In that case the issue of consent was relevant although ultimately they were matters upon which the deceased's evidence was not critical.
The court dismissed the application for a stay.[47]
[47] See summary in GMB v UnitingCare West [60] - [63].
In WCB v Roman Catholic Trust Corporation for the Diocese of Sale (No 2)[48] the plaintiff brought an application alleging that between 1977 to 1980 he was repeatedly sexually abused by a priest who worked at the time within the Catholic Diocese of Sale.
[48] WCB v Roman Catholic Trust Corporation for the Diocese of Sale (No 2) [2020] VSC 639.
The plaintiff first reported the abuse to his family in about 1986. The matter was first reported to police in 1995.
Arrangements were made for the priest to see a psychiatrist and he made admissions of guilt in respect of the acts complained of by the plaintiff. Following the complaint to the police in 1995 the priest was charged with a number of sexual offences against the plaintiff.
The priest died three days after he was charged.
The defendant was sued primarily on the basis of vicarious liability.
The defendant retained records of the priest's training and appointments, duties and the manner in which he performed that role.
There was found to be no deficiency in the defendant's documentary records which created any significant prejudice to the defendant.
All relevant witnesses except for the priest himself were alive.
The defendant had an opportunity to, and did, investigate the allegations that were made against the parish priest whilst he was still alive. The bishop had written to the insurance company in 1992 stating that the parish priest had admitted to his sexual abuse.
The stay was refused.
In ZYX the allegations of sexual abuse against the defendant was said to have occurred from 1968 to mid‑1973.
The allegations were made during the defendant's lifetime.
In declining to grant the stay his Honour Chief Judge Sleight found that any inherent problems of memory loss or loss of evidence by reason of the delay were a disadvantage that existed for both the plaintiff and the defendant.
The defendant was unable to point any distinct forensic disadvantage other than the inherent problems that delay may cause.
There was no evidence that the defendant suffered from dementia or other health problems which created a disadvantage for him (Moubarak), nor was there any significant evidence that had been lost (Batistatos), nor was any key witness deceased (Connellan).[49]
[49] ZYX; GMB [68] ‑ [70].
In Chalmers v Leslie[50] the plaintiff's action against the first defendant was based on unlawful sexual assaults.
[50] Chalmers v Leslie [2020] QSC 343; see analysis by Bowden DCJ in GMB [72] ‑ [76].
The plaintiff's case against the second defendant was that the second defendant owed the plaintiff a duty of care which the second defendant breached by causing the plaintiff to be placed in the sole care of the first defendant for extended periods of time in circumstances where the second defendant knew or ought to have known that the first defendant had sexually abused other young boys.
In Chalmers v Leslie it was not in dispute that the first defendant had severe dementia and was unable to provide instructions; to that extent the factual situation was similar to that in Moubarak.
However, the first defendant had pleaded guilty in 2003 to three charges of indecent assault on persons other than the plaintiff, that offending having occurred whilst the first defendant was a teacher.
Martin J accepted that similar fact evidence was admissible in civil proceedings but found that the circumstances in which the first defendant found himself and the admission of evidence about which the first defendant could now give no instructions rendered a fair trial impossible.
Whilst the plaintiff's evidence could be tested in cross‑examination, the first defendant's inability to give instructions meant that there was nothing of significance that could be put to the plaintiff.
In the absence of a finding in respect of the first defendant having abused the plaintiff, there could be no finding of liability on the part of the second defendant.
It was not suggested that the second defendant was in a position to give any direct evidence about the allegations against the first defendant and an unfair trial was therefore not possible.
The stay was granted.
Those authorities demonstrate that each case must be determined on its own facts and having regard to all of the circumstances.
The cases also demonstrate the heavy burden a defendant bringing such an application bears.

The evidence relied upon by the defendant

The defendant relies upon the following material:
1.Affidavit from Judith Masters of 7 September 2020.
2.The evidence of Dr Simon Sung, consultant neurologist dated 13 December 2014, 8 September 2016, 21 September 2017 and 21 September 2020.
3.Letter from the defendant's General Practitioner Dr Baselyous dated 19 January 2012.
4.The Enduring Power of Attorney signed by the defendant to Judith Masters dated 27 June 2006.

The evidence of Judith Masters

The affidavit of Judith Masters dated 7 September 2020 deposed to the following:
1.The defendant is currently 87 years of age; his date of birth being 12 September 1933.[51]
[51] Affidavit of Judith Masters dated 7 September 2020, par 2.
2.Judith Masters is the wife of the defendant and has been the defendant's primary carer since 2000 when the defendant had his first stroke.[52]
[52] Affidavit of Judith Masters dated 7 September 2020, par 4.
3.On 27 June 2006 the defendant appointed Mrs Masters as his enduring medical power of attorney.[53]
[53] Affidavit of Judith Masters dated 7 September 2020, Annexure JM001.
4.The defendant suffers from several longstanding medical and mental conditions.[54]
[54] Affidavit of Judith Masters dated 7 September 2020, par 8.
5.The defendant has been under 'the constant care' of his general practitioner Dr Baselyous of Gap Road Medical Clinic and under the care of his neurologist Dr Simon Sung of North West Melbourne Medical Specialists.[55]
[55] Affidavit of Judith Masters dated 7 September 2020, pars 9 and 10.
6.From a combination of Mrs Masters' own observations and her interactions with the defendant's medical specialists and GP and from reports provided by those medical practitioners, the defendant experienced, and continues to experience, the following medical conditions and symptoms:
(a)in 2013 he was diagnosed with Parkinson's;[56]
(b)his physical symptoms have remained relatively stable but his neurological symptoms have deteriorated and he suffers from dizziness, headaches, depression and cognitive impairment;[57]
(c)he suffers from Ménierè's disease which causes dizziness and loss of balance making him susceptible to falls;[58]
(d)the defendant requires a walking frame for mobility and can only travel short distances by car;[59]
(e)in 2004 and 2005 the defendant suffered severe brain stem strokes and spent approximately three months in rehabilitation at Western Hospital Footscray;[60]
(f)as a result of those strokes the defendant suffers a permanent weakness on his right side and continues to suffer from severe anxiety;[61]
(g)the defendant suffers from hypertension and diabetes;[62]
(h)the defendant underwent a heart ablation procedure in 2006 where his heart was stopped;[63]
(i)the defendant has been diagnosed previously with testicular cancer, has had a left knee total replacement and has undergone bilateral cataract surgery;[64] and
(j)the defendant 'has difficulty remembering events that occurred days or weeks ago and that he has great difficulty in recalling events a year ago and has little and usually no recollection of events decades ago'.[65]
[56] Affidavit of Judith Masters dated 7 September 2020, par 11.1.
[57] Affidavit of Judith Masters dated 7 September 2020, par 11.2.
[58] Affidavit of Judith Masters dated 7 September 2020, par 11.3.
[59] Affidavit of Judith Masters dated 7 September 2020, par 11.3.
[60] Affidavit of Judith Masters dated 7 September 2020, par 11.4.
[61] Affidavit of Judith Masters dated 7 September 2020, par 11.4.
[62] Affidavit of Judith Masters dated 7 September 2020, par 11.5.
[63] Affidavit of Judith Masters dated 7 September 2020, par 11.6.
[64] Affidavit of Judith Masters dated 7 September 2020, par 11.6.
[65] Affidavit of Judith Masters dated 7 September 2020, par 18.

Letter from Dr Baselyous GP dated 19 January 2012

The defendant relies upon a letter from Dr Baselyous, his general practitioner, dated 18 January 2012.[66]
[66] Annexure to affidavit of Judith Masters dated 7 September 2020, page 12.
Dr Baselyous states:
1.In 2004 the defendant sustained a brainstem stroke which resulted in residual right sided weakness.
2.This required considerable time in Western Hospital Footscray then three months of rehabilitation.
3.A secondary cerebral haemorrhage occurred the following year which also required extensive time in rehabilitation.
4.The defendant as at the date of the letter suffered hypertension, diabetes mellitis, testicular cancer at the age of 27, total left knee replacement, bilateral cataract surgery, anxiety secondary to situational crisis and Ménierè's disease.
5.Due to his condition (the defendant) is vulnerable to having a third and fatal stroke and it is therefore important that he is not put under stress. Because of his previous strokes, a rise in his blood pressure caused by stress will definitely increase the risk of a stroke or lead to a heart attack.
6.The defendant is susceptible to falls because of the dizziness caused by his Ménierè's disease.
7.The defendant is only able to travel short distances by car in order to avoid exhaustion and dizziness caused by his Ménierè's disease. A significant fracture caused by falls would be a co‑morbid factor.
8.Recently (the defendant) has experienced memory loss and I referred him to a neurologist for further assessment.

The evidence of Dr Simon Sung

There are four letters from Dr Simon Sung, consultant neurologist, before the court in support of the defendant's application.
Those letters are dated 13 December 2014, 8 September 2016, 21 September 2017 and 21 September 2020.
Dr Sung was not called to give evidence at the application.

The 13 December 2014 letter

In his letter of 13 December 2014, Dr Sung recommended that the defendant not be placed under stress nor made to travel long distances by air, sea or car as this may potentially precipitate a fatal stroke.
Dr Sung noted that on the previous two occasions where the defendant had a stroke the first happened when he was under stress and the second occurred when he was vomiting from his Ménierè's disease, triggered by travelling.[67]

The 8 September 2016 letter

[67] Attached to affidavit of Judith Masters dated 7 September 2020, page 13.

In his letter of 8 September 2016 Dr Sung noted that the defendant's Parkinson's disease which Dr Sung had been treating since April 2013 had remained relatively stable.
Dr Sung noted that there had been some progression in the defendant's non‑motor problems, in particular his cognition, anxiety and depression.
Dr Sung opined:
I believe that subjecting him to stress will result in significant deterioration to his health and exacerbation of his Parkinson's disease related symptoms, such as disabling tremor and worsening of his cognition and mental state, resulting in increased risk of suicidal ideation and suicide. Additionally, he will also be subject to an increased risk of potentially fatal stroke, with both episodes of stroke in the past having occurred in the context of stress and travel.

The 21 September 2017 letter

In his letter dated 21 September 2017 Dr Sung responded to a series of question asked by Lewis Holdway Lawyers.
Dr Sung was asked to state the percentage risk of the defendant having a medical episode if he was required to stand trial. I note that this request was in the context of the defendant facing criminal proceedings in respect of child sex allegations. The response by Dr Sung is therefore in response to an assessment of possible further medical events should the defendant stand trial as an accused person.
Dr Sung replied that the most relevant medical episode that may occur if the defendant were to stand trial would be recurrent stroke as this has the highest potential to be life threatening cause permanent physical and mental damage.
Dr Sung was unable to provide a specific percentage risk of the defendant having another stroke if he were to stand trial.
Dr Sung noted that epidemiological studies are not particularly helpful in the task of predicting stroke risk. In the defendant's case two of his previous strokes were triggered by acutely stressful events, the first being the death of a relative and the second occurring as a consequence of having the charges against him being read out to him.
Based on that fact Dr Sung stated that he would predict that the chance of the defendant having another stroke if he were subject to a criminal trial would be very high.
Dr Sung went on to state:
Outside of his risk of stroke the most relevant and active comorbidities are the defendant's Parkinson's disease and associated depression. Stress will exacerbate the symptoms of his disease though if the stressor is removed symptoms generally do get better over the course of weeks to months. From the motor point of view the defendant's main symptoms were noted to be slowness, tremor and poor balance with difficulty walking. From the non-motor point of view his main problems are marked postural dizziness, headaches, depression and anxiety and cognitive impairment.
Stress from standing trial is likely to exacerbate the symptoms, potentially to the point where it disables him to the point of being bedbound. If the stressor is permanent in nature such as if he was given a guilty verdict, his symptoms are likely to remain disabling for more prolonged periods of time, five months to years. It is doubtful that appearing by teleconference will significantly reduce the amount stress he will experience during the course of the trial which means that the risks to his health essentially remains the same.

The 21 September 2020 letter

Dr Sung's letter of 21 September 2020 was by way of update on the defendant's medical condition. Dr Sung had last assessed the defendant in person on 12 November 2019, some 12 months prior.
Dr Sung indicated in his letter of 21 September that he was told by Mrs Masters that the defendant's physical condition and cognition has declined further and that he is now in a nursing home.
Dr Sung sets out that the defendant's main medical problems that he has been managing include Parkinson's disease, recurrent ischaemic strokes, chronic migraine and depression.
The Parkinson's disease has been slowly progressing over the years negatively impacting the defendant's mobility and balance. When last seen in November 2019 the defendant was still able to walk limited distances with a four wheeled frame but was having recurrent falls and needed a wheelchair for travelling outside his home.
In regards to the defendant's ability to travel, Dr Sung noted that:
(w)hilst (the defendant) does experience disabling migrainous vertigo with longer distance of automotive travel, the bigger issue is that travelling for the purpose of attending a court hearing may potentially precipitate a life-threatening stroke. He has had two ischaemic strokes, both of which were precipitated by stress; accordingly, any significant stressor, for example having to face a court hearing, has a significant chance of causing another stroke.
In regards to mental capacity to understand legal matters or events from the 1960s, I have not formally assessed him on those aspects. The last time he had a brief cognitive assessment was in June 2018, where his MMSE done in hospital was 29/30. The MMSE does not assess long‑term memory, nor does it give any indication as to whether or not he has any understanding of legal matters. To address this issue I would recommend that he had formal neurocognitive testing by a neuropsychologist.

Observations on the evidence

Mrs Masters' evidence

Mrs Masters is not a medical practitioner. To the extent that she expresses an opinion about the defendant's medical condition, in providing or stating a diagnosis, she is not qualified to do so.
The defendant's physical medical issues (stroke) and whether he is suffering from a cognitive impairment (dementia, cognitive impairment, memory loss) are subject matters about which ordinary person is not able to form a sound judgment without the assistance of an expert in this field: here a general physician or, in the case of cognitive impairment, a neurologist of neuropsychologist.
This is properly opinion evidence that goes beyond the ordinary experience of the trier of fact. As such it requires the giver of that evidence to be suitably qualified.[68] Mrs Masters is not qualified to give that evidence.
[68] Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, 743 - 744.
Submissions were made by counsel for the defendant during the hearing of 30 October 2020 that Mrs Masters is able to give opinion evidence about the defendant's cognitive impairment and, specifically about the defendant's memory loss.[69]
[69] ts 34.
The submissions made during the application were that Mrs Masters was not expressing an opinion but was simply stating a fact.[70] That is, they comprise factual observations of the defendant by Mrs Masters.
[70] ts 34.
To the extent that Mrs Masters' evidence goes beyond a recitation of factual matters and her general observations about a decline in the defendant's apparent ability to recall events I do not accept her evidence.
She gives a broad statement about the defendant having difficulty remembering events that occurred 'days, weeks ago, a year ago and has little usually no recollection of events decades ago'. This statement is broad in its scope and there is no factual basis provided for these conclusions.
Counsel further argued that as Mrs Masters is the defendant's carer and the person who has the enduring power of attorney, she is in a position to provide opinion evidence about the defendant's cognitive impairment.
I disagree.
Whether the defendant is suffering from a cognitive impairment and, as a subsequent question, whether and to what extent that cognitive impairment affects the defendant's ability to remember events, to understand the plaintiff's case and to provide instructions to his counsel ('the Presser criteria'), is properly opinion evidence that goes beyond the ordinary experience of the trier of fact.
As such any opinion expressed on the defendant's medical condition that affects his ability to stand trial (whether physical or mental) must be given by a suitably qualified expert.
For the reasons I have outlined in [165] ‑ [167] above, I am unable to accept Mrs Masters' evidence as demonstrating that the defendant in fact suffers from a cognitive impairment and that any such cognitive impairment is causally linked to the defendant's inability to now receive a fair trial.

Dr Baselyous' report

I note that this report is some nearly nine years old and is of limited value for the purposes of any assessment of the defendant's current medical position. It is relevant to an historic account of the defendant's medical history only.

Dr Sung's letters

Risk of fatal stroke

Dr Sung's letter of 13 December 2014 is now six years old and of little current relevance.
Dr Sung's letter of 8 September 2016 provides general concerns about the exposure of the defendant to stress with the increase in risk of suicide and an increased risk of potentially fatal stroke.
It is of a level of generality in terms of the risk of potential fatal stroke that does not provide the court with assistance in determining the risk to the defendant of defending the current civil action brought by the plaintiff. The letter is some four years old.
Dr Sung's letter of 21 September 2017, written three years ago, appears to be in response to questions posed by the defendant's lawyers in the context of the defendant's risk of having a further stroke if he were subject to a criminal trial.
In that letter, Dr Sung noted that the defendant's two previous strokes were triggered by acutely stressful events, the first being the death of a relative and the second as a consequence of having charges against him read out in the context of a criminal trial.
In that context Dr Sung noted that stress from standing trial is likely to exacerbate the symptoms he has outlined potentially to the point where it disables the defendant to the extent that he might be bedbound.
Dr Sung then goes on to comment that if the stressor is permanent in nature such as if the defendant were to be found guilty following a criminal prosecution, the defendant's symptoms are likely to remain disabling for more prolonged periods of time, from months to years.
It was in the context of providing his opinion of the defendant's likely risks were he to face criminal proceedings that Dr Sung gave his opinion that it is doubtful that appearing via teleconference would significantly reduce the amount of stress he would experience during the course of the (criminal) trial, leading to Dr Sung's opinion that the risks to his health essentially remain the same.
The letter was clearly written in the context of contemplated criminal proceedings. The defendant had, at that time, been charged with offences in both Tasmania and in Western Australia.
Civil proceedings were not contemplated at the time Dr Sung wrote the letter of 21 September 2017.
There are significant differences in my opinion between an accused person facing a criminal prosecution and a defendant in civil proceedings.
Those differences include the manner in which the trial is conducted and the consequences upon an accused person following a guilty verdict including the risk of immediate imprisonment.
Whilst not dismissing that any court proceedings are stressful (for both parties), in my opinion there is a significant difference between an accused person facing serious criminal charges, with the prospect of imprisonment upon conviction, and a defendant in civil proceedings.
There is no distinction in the letters before the court from Dr Sung which distinguishes between, or addresses, the risks to the defendant in civil proceedings as opposed to criminal proceedings.
I take into account Dr Sung's opinion in his letter of 21 September 2020 that travelling for the purposes of attending a court hearing may potentially precipitate a life-threatening stroke and that any significant stressor, for example, having to face a court hearing, carries a significant chance of causing another stroke.
I weigh Dr Sung's evidence in respect of the defendant's risk of further stroke gravely in the context of this application.
However, it is not uncommon for vulnerable witnesses to appear before the courts and mechanisms exist, in this court, and are routinely used, to minimise stress caused to vulnerable witnesses.
There is no reason why those mechanisms could not be utilised in these proceedings, there is no reason why the defendant could not give his evidence‑in‑chief by affidavit to reduce the length of time he were required to give evidence, if he elected to give evidence in his defence.
The defendant would be permitted, upon application, to attend his trial (if he elected to do so) by video link or other electronic means from his residential care facility.
Were he to elect to give evidence, he would be similarly permitted to do so remotely from his care facility. The mechanisms that this court routinely uses in accommodating vulnerable witnesses would apply to any evidence given by the defendant. Those mechanisms would include suitable breaks, giving evidence from his bed (if required) and with medical staff on standby.
An application could properly be brought to expedite the trial of this matter.
The expert evidence before me does not reach the threshold that the defendant's risk of stroke is unable to be managed specifically in the context of civil proceedings where the defendant is not required to attend at trial in person and where he is at no risk of incarceration.
Dr Sung's letter of 21 September 2017 noted that the defendant's non‑motor problems included cognitive impairment. However, there is no explanation of what is meant by that term nor what nexus might exist between any such cognitive impairment and the defendant's ability to have a fair trial as understood by reference to the Presser criteria set out above.
It is noted that there has been no testing done nor detailed assessment by Dr Sung nor any other medical practitioner in respect of the defendant's cognitive state and whether any cognitive impairment is such as to render the defendant unable to receive a fair trial.
Dr Sung specifically stated in his letter of 21 September 2020 that he has not formally assessed the defendant on his mental capacity to understand legal matters or to recall events in the 1960s.
Dr Sung specifically recommended in his letter that to address that the defendant needs to have formal neurocognitive testing by a neuropsychologist.
There is no evidence before the court that this has been done.
Accordingly, I am not satisfied on the evidence before me that the defendant has established that he is suffering from a cognitive impairment.
Further, the evidence before me does not address, and therefore does not demonstrate, that by reason of any cognitive impairment (or other medical condition) the defendant is unable to understand the plaintiff's action, or is unable to recall events of that period or that he is unable to provide instructions to his counsel in order to defend this action.

The evidence that is available

It is relevant to canvass the evidence that is available in this case.
There is in existence a pretext call from the plaintiff to the defendant dated 22 September 2010. This call appears to have been made by the plaintiff through Detective Primmer of Kensington Detectives following the plaintiff's complaint to police about the indecent dealing offences.
The call is of importance to the plaintiff's case because it demonstrates that when the call was made (in 2010 after the plaintiff had suffered both strokes) the defendant clearly remembered the plaintiff as a child at Roelands Mission.
The defendant in that pretext call not only remembered the plaintiff but he also admitted viewing the defendant's private parts.
Whilst the plaintiff did not put directly to the defendant in that pretext call the allegations of indecent dealings, the pretext call is admissible in the plaintiff's action against the defendant.
It establishes confirmation of a relationship between the plaintiff and the defendant (in general terms), that the defendant recalled the plaintiff nearly 40 years after the alleged offences and that the defendant appeared to admit inspecting the plaintiff's private parts.[71]
[71] Albeit not to having indecently dealt with the plaintiff's penis and testicles; those precise allegations were not put to the plaintiff during the pretext call.
The weight to be placed on the call will be a matter for the trial judge.
This is not a case where the defendant is deceased.
Neither is it a case where material witnesses have died.
The plaintiff submits that Judith Masters, the defendant's wife, was also at Roelands Mission at the relevant time.
She is a potential witness able to be called for the defence or able to provide instructions to the defendant's counsel for the purposes of cross‑examination of the plaintiff (and other witnesses called by the plaintiff) on objective matters that may bear on the plaintiff's reliability and credibility as a witness.
The plaintiff's counsel in the course of oral submissions advised that other residents of Roelands Mission who have also asserted acts of child sexual abuse by the defendant will be called to give evidence in the course of these proceedings.
The evidence of other complainants of similar sexual offending by the defendant is admissible in the plaintiff's case.
This is not a case where the passage of time has seen the destruction of all relevant documentary evidence concerning relevant objective facts in this case.
The plaintiff has annexed to its application documents from the former 'Department of Native Welfare' that confirm the plaintiff's status as a ward of the State and his placement at Roelands Mission.
There are also in existence photographs of buildings and structures comprising Roelands Mission. This includes the defendant's former house and the Mizpah house where the plaintiff remembers living.
In making these observations it is clear that this is a case dependant on witness recollection which will undoubtedly be diminished by the passage of time.
The mere passage of time that would affect all witnesses in this case is not sufficient on its own to justify staying these proceedings.
In making these observations it is also clear that in cases such as these the acts complained of by the plaintiff are acts that occurred in private and are dependent to a large degree on the evidence of the plaintiff, the defendant in response and any cross-admissible propensity evidence of other alleged victims.

The defendant's submissions and conclusions

The defendant's submissions can be distilled into six points.
In dealing with the defendant's submissions individually I am cognisant of the defence case that it is the combination of factors which as a whole ought to satisfy the court that a permanent stay ought to be granted.
In reaching the conclusion that I have come to I have considered the defendant's submissions both individually and their operation as a whole.
Firstly, the defendant says that because of his mental condition and lack of cognition he is at all relevant times 'utterly in the dark' about the allegations made against him, he is unable to give instructions in relation to the allegations for the purposes of his defence,[72] he is 'utterly unable' to give evidence in the proceedings[73] and he would be unable to give instructions during the course of the trial.[74] Accordingly, the trial would have to take place in the defendant's involuntary absence.
[72] Defendant's outline of submissions in support of application for permanent stay dated 28 October 2020, par 28.
[73] Defendant's outline of submissions in support of application for permanent stay dated 28 October 2020, pars 31(d) and 31(e).
[74] Defendant's outline of submissions in support of application for permanent stay dated 28 October 2020, par 31(f); par 35.

For the reasons I give at [200] ‑ [206] above, I am not satisfied on the evidence before the court that the defendant's cognitive state or mental condition is such as to deprive him of the ability to exercise those functions.
Secondly, the defendant asserts that he is at risk of further and fatal stroke should he be required to answer these allegations. For the reasons I have outlined at [181] ‑ [199] above, I am not satisfied on the medical evidence before me and taking into account the mechanisms available to the court to take the defendant's evidence and to conduct the trial, that the risk cannot be managed.
Mechanisms are in place that are routinely used in court to take evidence from vulnerable witnesses; there is no reason why those mechanisms cannot apply to the defendant, nor is there any reason why an expedited trial application cannot be brought.
Thirdly, the defendant submits that he is now as an 87‑year‑old man required to answer allegations that are said to have occurred approximately 56 years ago.[75] However, as has been canvassed earlier in these reasons, delay of itself does not ground an application for a stay.
[75] Defendant's outline of submissions in support of application for permanent stay dated 28 October 2020, par 31(g).
Whilst it would have been preferable for the plaintiff to commenced proceedings earlier he was statute barred from issuing these proceedings until July 2018. As I have observed earlier, the plaintiff had complained to police in 2008 and the defendant was on notice of the fact of the allegations of sexual offending from at least 2010.
In light of the reasoning at [27] ‑ [42] above, the fact that the plaintiff complains now is not of itself determinative of this application.
Fourthly, the defence argues that there is no credible suggestion that some documentary evidence may be in existence that would bear upon the likelihood or otherwise of the alleged sexual assaults having occurred.[76]
[76] Defendant's outline of submissions in support of application for permanent stay dated 28 October 2020, par 31(h).
This case is no different to other cases involving sexual assault allegations. They are offences that typically occur in private and which are not dependent on documentary evidence to prove the allegations.
In this case documentary evidence as outlined in [220] ‑ [222] above is in existence which is relevant to the surrounding factual circumstances. There is also the pretext call as detailed in [208] ‑ [212] above.
This is not a case of vicarious liability on the part of the defendant where documentary evidence is required to determine proof of employment or proof of the scope of the defendant's employment in order to determine the plaintiff's claim as was the case in The Council of Trinity Grammar School v Anderson.
This is not a case where the defendant is deceased. Other material witnesses are alive and available to give evidence at trial.
In reaching this conclusion it is accepted that witness recollection and memory will clearly be affected by this passage of time. The reliability of a witness' evidence (plaintiff, defendant and other witnesses including other alleged victims and the defendant's wife, if called) will be a matter for the trial judge.
Fifthly, the defendant submits that at no time prior to the onset of the defendant's Parkinson's disease and occurrence of stroke does it appear that the defendant was ever confronted by the plaintiff with the details of the allegations of sexual assault.[77]
[77] Defendant's outline of submissions in support of application for permanent stay dated 28 October 2020, par 31.
This argument would have some weight if there was medical evidence that satisfied the court that the defendant was now unable to answer the allegations against him.
As outlined in [200] ‑ [206] above the medical evidence fails to reach the threshold of establishing that the defendant suffers from a cognitive impairment that prevents him from having a fair trial.
Sixthly, the defendant suffered his medical conditions prior to the DPP considering a criminal charge in 2018 and prior to these proceedings commencing.[78] I refer to the reasoning above in response to this submission.
[78] Defendant's outline of submissions in support of application for permanent stay dated 28 October 2020, par 31(b).
I add further that any decision by the Director of Public Prosecutions applying criteria applicable to whether it is in the public interest to prosecute the accused for criminal offences is not relevant to the issues to be determined in this application.
In refusing the application for a stay of proceedings I note, in accordance with the authorities cited earlier in this decision, that the plaintiff is entitled to have his claim heard subject to the inherent jurisdiction of the court to stay the proceedings.
The onus lies on the defendant to present material to the court to demonstrate that the case is exceptional so as to invoke an order for a stay of the proceedings.
For the reasons I have outlined, the defendant has failed to discharge the heavy burden he carries in bringing such an application.
The application for a stay is refused.
There is no reason why costs should not follow the event.

Orders

I make the following orders:
1.The defendant's application commenced by chamber summons filed 7 September 2020 is dismissed.
2.The defendant is to pay the costs of the proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CM
Associate to Judge Shepherd
27 JANUARY 2021