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
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…
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- AGLC
- Ugle v Masters [2021] WADC 8
- Case
- [2021] WADC 8
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the defendant, Masters, could be held vicariously liable for the sexual abuse committed by the priest. The court also considered whether the delay in bringing the action prejudiced the defendant to such an extent that it would be unjust to allow the case to proceed. The court had to balance the plaintiff's right to bring a claim against the potential prejudice to the defendant due to the passage of time and the death of the priest.
The court found that the defendant could be held vicariously liable for the actions of the priest, as the defendant retained records of the priest's training and appointments and had an opportunity to investigate the allegations while the priest was alive. The court held that the defendant had not demonstrated any distinct forensic disadvantage beyond the inherent problems of delay, such as memory loss or loss of evidence. The court also found that there was no significant evidence that had been lost or that any key witness had died. The court rejected the defendant's application for a stay of proceedings.
The court ordered that the case proceed to trial, allowing the plaintiff to pursue his claim against the defendant for the sexual abuse committed by the priest. The court found that the plaintiff's right to bring a claim outweighed the potential prejudice to the defendant due to the delay in bringing the action. The court also found that the defendant had not demonstrated any significant prejudice that would warrant 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
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.