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YZ v Beit Habonim Pty Ltd

YZ v Beit Habonim Pty Ltd

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Case Copied 2 May 2023 69 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

INSTITUTIONAL LIABILITY LIST

S ECI 2019 05273

YZ	Plaintiff
v
BEIT HABONIM PTY LTD (ACN 051 827 984) AS TRUSTEE OF THE ASSOCIATION OF PARENTS & FRIENDS OF ZIONIST YOUTH	First Defendant
and
ALAN WEIDEN	Third Defendant

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JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2023
DATE OF JUDGMENT:	2 May 2023
CASE MAY BE CITED AS:	YZ v Beit Habonim Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 222

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INSTITUTIONAL LIABILITY – PRACTICE AND PROCEDURE - Appeal against decision of associate justice – Refusal to grant application for permanent or temporary stay of civil proceeding – Alleged historical sexual abuse – Whether it would be manifestly unfair to third defendant or would otherwise bring administration of justice into disrepute if claim proceeded – Whether in interests of justice – Whether third defendant faces a real risk of criminal proceedings – Whether criminal proceedings on the cards – Privilege against self-incrimination – Admission of further evidence – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 77.06 –Supreme Court Act 1986 (Vic) s 30 – Longman v The Queen (1989) 168 CLR 79 – Commissioner of the Australian Police v Zhao (2015) 255 CLR 46 – Crespin v Francis [2016] VSC 277 – Citation Resources Ltd v Landau (2016) 116 ACSR 410 – Connellan v Murphy [2017] VSCA 116 – Stocks v Johns (No 2) [2019] VSC 584 – Grant v Bird [2021] VSC 380 – Villan v State of Victoria [2021] VSC 354 – Lucciano v The Queen [2021] VSCA 12 – 5 Boroughs NY Pty Ltd v State of Victoria (No 3) [2023] VSC 22.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Santamaria	Mazzeo Lawyers
For the First Defendant	Ms S Tagliaferro, solicitor	Wotton + Kearney
For the Third Defendant	Mr M Latham	Destra Law

HER HONOUR:

Preliminary

This appeal is brought by the third defendant against an associate justice’s refusal to stay the plaintiff’s civil damages proceeding, on either a permanent or temporary basis.

From 1971 to 1975, the plaintiff, YZ (a pseudonym), claims that he was a member of the youth organisation, Ichud Habonim Zionist Youth Movement. YZ alleges Ichud Habonim was operated by the first defendant, Beit Habonim Pty Ltd, the trustee of the Association of Parents & Friends of Zionist Youth.

The third defendant, Alan Weiden,[1] was a youth group leader at Ichud Habonim during the period 1974 to 1976. His role involved supervising children and organising various activities on multi-day camps run by Ichud Habonim.
[1]Weiden is the third defendant in the proceeding pursuant to YZ’s further amended writ dated 29 March 2021. The proceedings against the second defendant have been discontinued. Thereafter, the parties have erroneously referred to Weiden as the second defendant, and this reference was made in the associate justice’s ruling. However, Weiden remains the named third defendant on the court record.

YZ alleges that, when…

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.

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Details

Case: [2023] VSC 222
Decision Date: 2 May 2023

CaseChat Overview and Summary

The case of YZ v Beit Habonim Pty Ltd was heard in the Supreme Court of Victoria. The plaintiff, YZ, brought a claim against the third defendant, Beit Habonim Pty Ltd, alleging historical sexual abuse. The third defendant sought a stay of the proceedings on various grounds, including that proceeding with the claim would be manifestly unfair and bring the administration of justice into disrepute. The court had to determine whether the interests of justice required the claim to be stayed, whether the third defendant faced a real risk of criminal proceedings, and whether the admission of further evidence would infringe upon the third defendant's privilege against self-incrimination.

The court examined whether proceeding with the claim would be manifestly unfair to the third defendant or otherwise bring the administration of justice into disrepute. It considered the potential impact of the claim on the third defendant, including the risk of criminal proceedings and the privilege against self-incrimination. The court also assessed whether the admission of further evidence would be necessary and whether it would prejudice the third defendant. The court applied relevant legal principles and precedents to determine whether the claim should proceed.

The court found that proceeding with the claim would not be manifestly unfair to the third defendant and would not bring the administration of justice into disrepute. The court held that the interests of justice required the claim to proceed, and that the third defendant did not face a real risk of criminal proceedings. The court also found that the admission of further evidence would not infringe upon the third defendant's privilege against self-incrimination. Accordingly, the court dismissed the third defendant's application for a stay of the proceedings.

The court made orders dismissing the application for a stay of the proceedings and allowing the claim to proceed. The court also made orders for costs, including costs of the application for a stay of the proceedings. The third defendant was ordered to pay the plaintiff's costs of the application on an indemnity basis.

Orders