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Weiden v YZ (a pseudonym) (No 2)

Weiden v YZ (a pseudonym) (No 2)

Case [2023] VSCA 294 1 December 2023

Abuse of Process

Limitation Periods

Res Judicata

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0053

ALAN WEIDEN	Applicant
v
YZ (A PSEUDONYM)	First Respondent
BEIT HABONIM PTY LTD (ACN 051 827 984) AS TRUSTEE OF THE ASSOCIATION OF PARENTS & FRIENDS OF ZIONIST YOUTH (NO 2)	Second Respondent

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JUDGES:	BEACH, MACAULAY and LYONS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2023
DATE OF JUDGMENT:	1 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 294
JUDGMENT APPEALED FROM:	[2023] VSC 222 (Tsalamandris J)

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COURTS – Abuse of process – Permanent stay of proceeding – Where respondent commenced proceeding almost 45 years after alleged sexual assaults by youth group leader – Where no limitation period for claims resulting from child sexual abuse – Whether passing of time, vagueness and inconsistencies in allegations, loss of medical records and loss of opportunity to explore surrounding circumstances of alleged abuse constitutes exceptional circumstances so trial of proceeding would necessarily be unfair – Whether proceeding in such circumstances an abuse of process justifying permanent stay.

Limitation of Actions Act 1958, ss 27O, 27P and 27R.

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 applied.

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Counsel
Applicant:	Mr MJ Latham with Ms M Cananzi
First Respondent:	Mr S McCredie
Second Respondent:	No appearance

Solicitors
Applicant:	Destra Law
First Respondent:	Mazzeo Lawyers
Second Respondent:	Wotton + Kearney

BEACH JA
MACAULAY JA
LYONS JA:

This case concerns events alleged to have occurred almost 49 years ago between two individuals, YZ and Alan Weiden (‘Weiden’). YZ claims that between 1971 and 1975 he was a member of a youth organisation, then called Ichud Habonim; and that during the same period, Weiden was also a member and one of its youth group leaders. YZ claims that he was sexually assaulted by Weiden on various occasions between late December 1974 and late January/early February 1975.
On 21 November 2019, YZ commenced a proceeding claiming damages for personal injuries he alleges he suffered as a result of the alleged sexual assaults perpetrated on him by Weiden, who he sues as the second defendant in the proceeding.[1] In his proceeding, YZ alleges that Beit Habonim Pty Ltd (‘Beit Habonim’), which he sues as the first defendant, is the trustee of a trust, and that the trustee of that trust ran Ichud Habonim at the relevant time.[2] His case against Beit Habonim is that it is vicariously liable for the tortious conduct of Weiden and/or negligent in its supervision of Weiden and failure to implement protective systems to minimise the risk of harm to its members from sexual misconduct.
[1]While Weiden is the second defendant in the proceeding below, in some of the documents in the court below he is referred to as the third defendant.
[2]In Weiden v YZ [2023] VSCA 258, dealing with an application for security for costs made by YZ against Weiden, it is incorrectly stated at [1] that YZ and Weiden were members of Beit Habonim. There is no suggestion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Weiden v YZ (a pseudonym) (No 2)

Details

AGLC: Weiden v YZ (a pseudonym) (No 2) [2023] VSCA 294
Case: [2023] VSCA 294
Decision Date: 1 December 2023

CaseChat Overview and Summary

The case of Weiden v YZ (a pseudonym) (No 2) involved a claimant seeking to hold a respondent accountable for alleged sexual assaults that occurred almost 45 years prior when the claimant was a child. The matter was heard in the Supreme Court of Victoria. The crux of the dispute centred on the admissibility and fairness of proceeding with the trial given the significant delay and the attendant issues of memory loss, lack of medical records, and inconsistencies in the claimant's accounts.

The primary legal issue before the court was whether the passage of time, coupled with the vagueness and inconsistencies in the allegations, the loss of medical records, and the inability to explore the circumstances surrounding the alleged abuse, constituted exceptional circumstances. These circumstances would render the trial of the proceeding necessarily unfair. The court had to determine if, in these exceptional circumstances, proceeding with the trial would constitute an abuse of process justifying a permanent stay of the proceedings.

The court considered the case of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, which underscored that while there is no statutory limitation period for claims resulting from child sexual abuse, other factors could still render a trial unfair. In applying these principles, the court concluded that the extensive delay, the loss of records, and the vagueness of the allegations were indeed exceptional circumstances. These factors rendered the proceeding unfair to the extent that the court found it to be an abuse of process to proceed with the trial. Consequently, the court granted a permanent stay of the proceedings.

In summary, the court's decision was that given the exceptional circumstances, including the significant passage of time and the associated difficulties in conducting a fair trial, the proceeding constituted an abuse of process, justifying a permanent stay.

Orders