Willmot v State of Queensland

In the case of Willmot v State of Queensland, the appellant sought damages from the State for negligence in failing to properly monitor and supervise her while she was a State Child under the State Children Act 1911 (Qld). The primary judge had permanently stayed the appellant's claim on the grounds that the consequences of the passage of time since the alleged events occurred made a fair trial impossible. The appellant argued that the primary judge erred in treating the absence of foundational witnesses as determinative and in finding it insurmountably difficult to separate the impact of the alleged assault by NW from the impacts of the alleged mistreatment by other persons. The court had to decide whether the primary judge was correct in exercising the discretion to permanently stay the proceedings.

The court held that the primary judge was not required to resolve whether the rule in House v The King applies to appellate review of an exercise of the discretion to permanently stay a proceeding. The court found that the primary judge was entitled to conclude that it would be insurmountably difficult for the State to investigate, lead evidence or cross-examine about the foundational facts underlying the foundational allegations because the relevant persons, except NW, were deceased. The court also held that the primary judge was not required to consider whether the appellant's former foster sibling's evidence formed a basis for the State to investigate and substantiate the foundational allegations.

The court dismissed the appeal and ordered that the appellant is to pay the respondent's costs of the appeal on the standard basis.