Willmot v Queensland

Case [2024] HCA 42


HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

JOANNE EDITH WILLMOT  APPELLANT

AND

THE STATE OF QUEENSLAND  RESPONDENT

Willmot v Queensland

[2024] HCA 42

Date of Hearing: 7 May 2024

Date of Judgment: 13 November 2024

B65/2023

ORDER

1.Appeal allowed in part, with the respondent to pay the appellant's costs.

2.Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 16 May 2023 and, in their place, order that:

(a)The appeal be allowed in part, with the respondent to pay the appellant's costs; and

(b)The order of the Supreme Court of Queensland made on 22 August 2022 be set aside and, in its place, order that:

(i)subject to para (ii), the defendant's application for a permanent stay of the proceeding is dismissed;

(ii)the claims pleaded in paras 9(b), 11 and 12 of the Amended Statement of Claim dated 20 August 2021 are permanently stayed; and

(iii)the defendant pay the plaintiff's costs of the application.

On appeal from the Supreme Court of Queensland

Representation

B W Walker SC with G R Mullins KC, S D Anderson and P M Nolan for the appellant (instructed by Littles Lawyers)

C C Heyworth-Smith KC with D J Schneidewin and K E Slack for the respondent (instructed by Crown Law (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Willmot v Queensland

Courts – Abuse of process – Permanent stay of proceedings – Where claim for damages for personal injury for alleged child sexual abuse and serious physical abuse more than 50 years ago – Where no limitation period for claims resulting from child sexual abuse or serious physical abuse under s 11A of Limitation of Actions Act 1974 (Qld) – Where deaths of certain alleged perpetrators and other potential witnesses – Where absence of documentary evidence – Whether trial necessarily unfair – Whether abolition of limitation period changed right to fair trial – Whether continuation of proceedings an abuse of process justifying permanent stay.

Words and phrases – "abuse of process", "child sexual abuse", "delay in bringing proceedings", "exceptional circumstances", "fair trial", "forensic disadvantage", "irreducible minimum standards of fairness", "limitation period", "manifest unfairness", "non-delegable duty", "oppressive", "permanent stay", "prejudice", "serious physical abuse", "unfairness".

Limitation of Actions Act 1974 (Qld), s 11A.

  1. GAGELER CJ, GORDON, JAGOT AND BEECH-JONES JJ.   The appellant ("Ms Willmot") was born in April 1954. In June 2020, Ms Willmot brought proceedings against the respondent, the State of Queensland ("the State"), seeking damages for sexual abuse and serious physical abuse she alleged that she had suffered more than 50 years ago.[1]

    [1]The proceedings were filed on 11 June 2020.

  2. There is no dispute[2] that Ms Willmot was a "State Child"[3] within the meaning of s 4 of the State Children Act 1911 (Qld) from when she was an infant until about September 1966. As a "State Child",…

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Willmot v Queensland [2024] HCA 42
Case
[2024] HCA 42
Decision Date

CaseChat Overview and Summary

The case of Willmot v Queensland involved an appeal to the High Court of Australia concerning a claim for damages for personal injury arising from alleged child sexual abuse and serious physical abuse that occurred more than 50 years prior. The appellant, Ms. Willmot, sought to pursue these claims against the respondent, the State of Queensland. The central dispute revolved around whether the continuation of these proceedings, in light of the significant delay and the deaths of potential perpetrators and witnesses, constituted an abuse of process justifying a permanent stay.

The High Court was required to determine whether the abolition of limitation periods for claims resulting from child sexual abuse or serious physical abuse under s 11A of the Limitation of Actions Act 1974 (Qld) altered the right to a fair trial. Specifically, the court had to consider whether the forensic disadvantage arising from the passage of time, including the absence of documentary evidence and the unavailability of key individuals, rendered a trial necessarily unfair to the extent that it constituted an abuse of process warranting a permanent stay of proceedings.

The High Court reasoned that fairness is an intrinsic concept, independent of community attitudes, and that procedural fairness is concerned with natural justice. The court affirmed that a Supreme Court possesses an inherent power to stay proceedings for abuse of process if a trial would be manifestly unfair, meaning there is no real possibility of a fair trial. Such a stay is a measure of last resort. In this instance, the court allowed the appeal in part, setting aside the orders of the Court of Appeal of the Supreme Court of Queensland. The High Court ordered that the defendant's application for a permanent stay of the proceeding be dismissed, subject to a permanent stay being imposed on specific claims pleaded in the Amended Statement of Claim.

Orders

Orders of the court

1. Appeal allowed in part, with the respondent to pay the appellant's costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 16 May 2023 and, in their place, order that:

(a) The appeal be allowed in part, with the respondent to pay the appellant's costs; and

(b) The order of the Supreme Court of Queensland made on 22 August 2022 be set aside and, in its place, order that:

(i) subject to para (ii), the defendant's application for a permanent stay of the proceeding is dismissed;

(ii) the claims pleaded in paras 9(b), 11 and 12 of the Amended Statement of Claim dated 20 August 2021 are permanently stayed; and

(iii) the defendant pay the plaintiff's costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER CJ, GORDON, JAGOT AND BEECH-JONES JJ EDELMAN J GLEESON J
In the circumstances, there should be a stay of the Pickering Allegation.Conclusion and orders For those reasons, the appeal should be allowed, in part, with the State to pay Ms Willmot's costs. The orders of the Court of Appeal of the Supreme Court of Queensland of 16 May 2023 should be set aside and, in their place, order that:1.The appeal be allowed, in part, with the respondent to pay the appellant's costs.2.The order of the Supreme Court of Queensland of 22 August 2022 be set aside and, in its place, order that:(i)subject to para (ii), the defendant's application for a permanent stay of the proceeding is dismissed;(ii)the claims pleaded in paras 9(b), 11 and 12 of the Amended Statement of Claim dated 20 August 2021 are permanently stayed;(iii)the defendant pay the plaintiff's costs of the application. Introduction, fairness, and fashion sense Fairness is not like fashion sense. Although the application of fairness, and the basic principles of justice which it informs, depends upon all of the particular circumstances of a case, fairness does not fade in and out with community attitudes, like flares or skinny jeans. When Lord Mansfield said in Somerset v Stewart[107] that "[t]he state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political", he was not saying that community attitudes to slavery had changed so that slavery, once fair, had become unfair. No matter what earlier or contemporary communities considered substantive fairness to require, legal rules concerning slavery were always contrary to the natural condition of human freedom.[108] So too, like rules based on substantive fairness, rules based on procedural fairness are concerned with natural justice not community attitudes. The judicial bribes that were tolerated in the seventeenth century[109] or the lengthy court delays that occurred in Chancery in the nineteenth century[110] were unfair irrespective of whether they were tolerated by the community standards of those times. As some enlightened contemporary writers and government officials realised, it was the nature of those procedures that made them unfair.[111] Whatever the community might have thought or tolerated at the time, those procedures were naturally unjust.[107](1772) Lofft 1 at 19 [98 ER 499 at 510].[108]D 1.5.4.1 (Florentinus). [109]Kerly, An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery (1890) at 156-158; see also 178. [110]Kerly, An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery (1890) at 270-271; see also at 155-158, 178. [111]Parkes, A History of the Court of Chancery (1828) at 148-153, quoting Observations concerning the Court of Chancery, presented to the Parliament (1653); Kerly, An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery (1890) at 157. See also Dickens, Bleak House (1852), vol 1 at 4-6. Not only are the concepts of justice and fairness independent of prevailing fashion, but those concepts are not a zero-sum game.[112] A trial which is unfair—involving a high degree of substantive or procedural prejudice to a party caused by circumstances of injustice—does not become fair because the unfairness to that party provides an important countervailing benefit to another party or (as in criminal proceedings) to a complainant. If a trial would be manifestly unfair, in the sense that there would be no real possibility of a fair trial, then there is an inherent power for a Supreme Court, such as the Supreme Court of Queensland, to stay proceedings for abuse of process.[113] Such a stay is a measure of last resort[114] but does not require drawing "any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand".[115][112]See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 549.[113]Walton v Gardiner (1993) 177 CLR 378 at 393; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 ("Batistatos") at 264 [6].[114]Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325 at 409 [248].[115]Jago v District Court (NSW) (1989) 168 CLR 23 at 74. See also Walton v Gardiner (1993) 177 CLR 378 at 394.

Ratio Decidendi

Legal Principle Established

Established by: GAGELER CJ, GORDON, JAGOT AND BEECH-JONES JJ, EDELMAN J, GLEESON J

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