YZ v Beit Habonim Pty Ltd

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 he was twelve years old, he was groomed and sexually assaulted by Weiden on multiple occasions during 1974 and 1975 (the relevant period). YZ asserts that the abuse occurred across three locations, namely, the shower blocks at a camp run by the youth organisation (camp allegations), inside a car at several parks and golf courses around the Melbourne Metropolitan area (park allegations), and at the plaintiff’s home (home allegations).

YZ asserts that Ichud Habonim is vicariously liable for the actions of Weiden, and further liable in negligence by reason of its failure to exercise reasonable care in its supervision of Weiden, and a failure to implement protective systems to minimise the risk of harm to its members from sexual misconduct.

Weiden admits that he was a youth group leader during the relevant period but denies the camp allegations, the park allegations, and the home allegations. Beit Habonim does not admit that YZ was a member of Ichud Habonim between 1971 and 1975 and denies that Weiden was acting as its servant or agent in his role as youth group leader. Beit Habonim says that it does not know and can neither admit nor deny the allegations. Beit Habonim did not seek to be heard on the stay application, save that it submitted that if a stay was to be granted, it should apply to the whole proceeding. It took the same position in this appeal.

By writ dated 21 November 2019, YZ commenced proceedings in this Court.

By summons dated 17 May 2022, Weiden made an application to permanently stay the proceeding. In short, Weiden submitted that YZ’s allegations involved significant inconsistencies which could not be investigated due to the passage of almost 50 years, including the loss of records and other evidence, and the lost opportunity to explore relevant surrounding circumstances. In the alternative, Weiden sought a temporary stay of the proceeding until there was no longer a real risk that he would face criminal prosecution in respect of the alleged assaults.

Weiden has lived in Israel since May 1982 and since that time has only visited Australia twice for short periods in 2004.

The stay application was heard by Irving AsJ on 7 June 2022. On 15 July 2022, the associate justice ruled that exceptional circumstances justifying a permanent stay of the proceeding had not been demonstrated and declined to grant the stay (the ruling).[2] His Honour also declined to grant a temporary stay of the proceeding on the basis that Weiden did not face a real risk of criminal prosecution at the time of his application.
[2]YZ v Beit Habonim Pty Ltd (ACN 051 827 984) ATF Association of Parents & Friends of Zioniest Youth [2022] VSC 402 (the ruling).

By notice of appeal dated 29 July 2022, Weiden sought to appeal the ruling and order of the associate justice, pursuant to subsection 17(3) of the Supreme Court Act 1986 (the Act) and r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 (the Rules).

For the reasons that follow, I have determined that:

(a) there was no error by the associate justice in respect of his refusal to grant a permanent stay of the proceeding;

(b) whilst I am persuaded the associate justice erred in part of his reasoning in respect of his refusal to grant a temporary stay, when considering this application afresh, I have reached the same conclusion. That is, it is not in the interests of justice to grant a temporary stay of the proceeding as I am not persuaded that a criminal prosecution against Weiden is presently ‘on the cards’.

Background

YZ was born in August 1962 and is currently 60 years of age.

Mr Thomas McCredie, solicitor for the plaintiff, affirmed an affidavit on 27 May 2022 (McCredie affidavit)[3] in which he deposed that YZ became aware of the Royal Commission into Institutional Responses to Child Sexual Abuse in 2013 and subsequently disclosed the alleged abuse to the Royal Commission. In the disclosure session, YZ was encouraged to report the abuse to Victoria Police (the police).
[3]Both parties referred to the affidavit material provided in respect of the stay application before the associate justice. Such affidavit material included the evidence subsequently outlined in this judgment.

YZ first complained to the police on 4 December 2015, at which time he made the first of four statements. In his first statement, YZ alleged three instances of abuse by Weiden. YZ stated that he attended two camps at Ballarat Airfield which were run over the school summer holidays for about 10 days each. YZ stated that he was first abused by Weiden within a few days of being on one of the camps. Further, that whilst he could not recall the exact dates of the camps, he recalled that instances of abuse occurred at one of the camps held ‘just after Cyclone Tracy hit Darwin which was Christmas Day in 1974’ (the camp). YZ stated that Weiden was in a position of leadership at the camp and was 17 or 18 years old at the time. He detailed the first instance of abuse by Weiden at the camp as follows:

[Weiden] woke me early that morning and we got towels. He led me down to the second shower block. There was a line of showers and opposite was another line of showers. There was no one around so we undressed and then stepped into our own shower, that was opposite one another. Once in the shower he started to masturbate himself. By this I mean he was playing with his penis. He continued to do this until he ejaculated. At the time I didn’t understand what he was doing.
Once [Weiden] ejaculated he asked me to masturbate myself as he watched. I did what he said but never ejaculated. I had never masturbated before and so just followed what he had done before. After a time he asked me if he could come over to my shower which I agreed. He came to my shower and we both stood there naked under the running water.
When he came over to my shower he then fondled my penis. I don’t remember getting an erection and I know that I never ejaculated during the times that [Weiden] was abusing me. After a short time he stopped and returned to his shower where he washed himself. We then stopped showering, dried and dressed ourselves. [Weiden] told me not to say anything to anyone and that we would do it the next day. We both left the shower area and returned to the dormitory area.

In his first statement, YZ described the second and third instances of abuse at the camp in substantially similar terms to the first, save for that, on the second occasion, Weiden put YZ’s penis in his mouth and asked YZ to do the same to him, and on the third occasion, in addition to the actions that had occurred on the first and second occasions, Weiden kissed YZ on the lips. On this third occasion, YZ said ‘all of a sudden another High Leader appeared in the doorway and questioned as to why we were having a shower at such an early time in the morning … This was the last time that anything happened on the camp with [Weiden]’.

In addition to the occasions of abuse at the camp, YZ also described further instances of abuse as follows:

After the camp finished I know that I went on various outings with [Weiden]. He would pick me up in either his or his families car. We went to various golf courses and he would park the car and the same things would happen. That is he would masturbate and then fondle my penis. He was always trying to kiss me by this time which I kept trying to pull away. He attempted to put his penis into my anus but there was no way this was happening. I squeezed my buttocks as tight as I could to stop him from penetrating my anus. I felt his penis pushing against my anus but it never penetrated through. He eventually stopped and gave up trying.[4]

[4]The park allegations, as referred to above at [4].

The first statement also detailed an instance of abuse at YZ’s home, which he stated occurred in the next holiday break following the camp. YZ stated this was ‘the last time anything happened with [Weiden]’. YZ described this occasion of abuse by Weiden as follows:

When he arrived we went to my bedroom and he closed the bedroom door.
I remember that we were lying on the floor naked and he had masturbated his penis and then fondled my penis. He was kissing me on the mouth as he fondled my penis.
[Weiden] then put my penis into his mouth and began to suck it for a short time. I then sucked his penis. I remember that his penis was erect but I don’t remember him ejaculating then.
[Weiden] then tried to put his penis into my anus. I was keeping my buttocks closed as tight as I could but felt his penis pushing on the outside of my anus. He eventually stopped trying…[5]

[5]The home allegations, as referred to above at [4].

The Victoria Police Investigation Full Response Report (LEAP record) recorded a complaint by YZ on 28 December 2016. The LEAP record stated that ‘incidents of indecent assault (oral penetration, fondling, kissing and attempted anal penetration)’ occurred when YZ was ‘about 15 years old in 1977 whilst on a Jewish summer camp in Ballarat and on one occasion at [YZ’s] home address’.

On 17 October 2017, the LEAP record stated that further inquiries were made of YZ regarding the exact location of the alleged offending at Ballarat.

YZ made a second statement to the police on 18 December 2017. In this statement, he said that the abuse started on the second morning of the camp and continued for the following eight days. Contrary to his first statement, in his second statement YZ said that the abuse continued after the incident in which the High Leader appeared in the doorway (as described in [16] above).

In his second statement, YZ described attending the Australian Air League Building in Ballarat with police on 5 December 2017, at which time YZ identified the shower block where he said the camp allegations occurred. Photographs taken of the camp buildings, including the shower block, were annexed to the second statement. Also in this statement was a description by YZ of his family home, together with a hand-drawn plan of the premises, and 35 photographs of the interior and exterior of the house obtained from a historical internet real estate listing. YZ also identified a photograph of the bedroom where he said the home allegations occurred.

On 31 May 2018, YZ made a third statement to police to which he annexed three photographs of himself during the relevant period. YZ stated that the first photograph depicted attendees (including himself) at the ‘Habonim summer camp at the end of 1974 and into early 1975’. YZ stated that the second photograph depicted YZ in his grade 6 primary school class photograph taken in April or May of 1974. He stated that the third photograph was a single headshot taken of him in 1974, when he was 12 years of age.

On 18 July 2018, YZ made a fourth statement to police. In this statement, YZ sought to clarify a number of issues detailed in his previous statements. YZ said that the allegations contained in the first statement related to a camp occurring after Christmas Day 1974 and into 1975. YZ also stated that he did not believe that he would be able to identify the location in the vicinity of Yarra Bend Golf Course, Fairfield, where one of the park allegations occurred. Finally, YZ stated that the park allegations and home allegations occurred in ‘the same 1974-75 school holiday period’, and prior to Weiden’s departure to Israel in February 1975.

On 25 October 2018, Paul Birgham, Acting Commander (Crime), made a final decision not to approve Weiden’s extradition from Israel, and determined that the most appropriate course of action was to issue warrants of apprehension to be executed in the event that Weiden returned to Australia. On this basis, on 16 November 2018, applications for warrants of apprehension were made in the Magistrates’ Court and were subsequently issued by a Registrar.

The McCredie affidavit exhibited several witness statements obtained by police in the course of their investigations of the alleged offending, together with photographs taken by ‘unnamed person four’[6] who attended the camp from 1974–1975. Three of those photographs depict Weiden and one depicts YZ. These witness statements are detailed in the ruling at [31]–[38].
[6]The ruling (n 2 ), [34].

Medical records and reports

Relevant to the permanent stay application and YZ’s claim for damages is medical material relating to YZ’s past history, including his involvement in two motor vehicle accidents in 1979 and 1980. A subpoena to the Transport Accident Commission did not result in the production of any records in relation to either accident. Further, there are no contemporaneous clinical records from that time. YZ’s solicitors produced clinical records from numerous practitioners he had attended upon since August 2007, however, it was agreed between the parties that none of those records contained information relating to the injuries sustained in the motor vehicle accidents.

In her report dated 13 February 2012, Dr Bialylew, psychiatry registrar, recorded a history given to her by YZ in respect of the alleged abuse by Weiden and subsequent motor vehicle accidents as follows:

He recounts that his behaviour followed a period in which he was sexually assaulted by a camp leader over a period of approximately 12 months…
…
He significantly suffered numerous car accidents with serious head injury which left him feeling changed and resulted in him using increasing levels of substances with a sense that he was ‘invincible’. This exacerbated his significant drug addiction to both alcohol and cocaine and resulted in a downward spiral including loss of his wife and family, loss of houses and loss of his business.

On 4 April 2019, at the request of his solicitors, YZ attended on medico-legal psychiatrist Professor Lorraine Dennerstein. In her report dated 12 April 2019, Professor Dennerstein reported that in the 1979 accident, YZ suffered a laceration to his forehead and a torn metacarpal ligament in his right hand which were sutured, as well as a back injury. Professor Dennerstein reported that, as a result of a motor vehicle accident in 1980, YZ had fractured three vertebra, spent three months in hospital, and had experienced back pain in the last ten years.

Material relied upon by Weiden in the stay application

In support of the stay application, Weiden’s solicitor, Mr Strahinja Steva Pajic, swore affidavits on 17 May and 2 June 2022. In the later affidavit, Mr Pajic deposed that he spoke with Detective Leading Senior Constable David Rae (D/LSC Rae) on 1 June 2022 in relation to the possible extradition of Weiden. Mr Pajic’s file note of this conversation records that he was told there were ‘no plans in place’ to seek Weiden’s extradition because it was a ‘1 v 1 matter and there was insufficient evidence to justify extradition at the time’. The file note further stated that Mr Pajic enquired as to whether the decision not to seek Weiden’s extradition would be revisited if new evidence came to light and that, in response, D/LSC Rae stated that ‘the decision would absolutely be revisited however it would require new evidence to be uncovered such as other victims or witnesses coming forward’. The file note recorded that D/LSC Rae told Mr Pajic that extradition proceedings in relation to Weiden could not be ruled out.

Ruling of associate justice dated 15 July 2022

The associate justice’s ruling set out the background to the proceedings, detailed the alleged offending and Weiden’s defence, and summarised the evidence and submissions relied upon by the parties.

The ruling first addressed Weiden’s permanent stay application. The associate justice referred to the principles relevant to an application for a permanent stay. His Honour noted that a defendant seeking a permanent stay bears a heavy onus, and that a permanent stay will only be granted in exceptional circumstances. The associate justice articulated the relevant test as:

[W]hether, having regard to all of the circumstances, maintaining the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people.[7]

[7]The ruling (n 2), [51].

The associate justice noted that Weiden relied on the following factors in favour of a grant of permanent stay:

(a)       the passage of time since the alleged abuse;
(b)       the vague and inconsistent nature of YZ’s allegations;
(c)       the loss of records and other evidence; and
(d)      the lost opportunity to explore relevant surrounding circumstances.[8]

[8]Ibid, [55].

In considering the application, the associate justice specifically noted the inconsistencies identified by Weiden at [58(a)–(g)] of the ruling as follows:

(a)the police log reveals that the plaintiff first reported the abuse to the police on 4 December 2015 and on 28 December 2016 the plaintiff told police that the [Weiden] assaulted him in 1977 when he was 15 years old;

(b)the log records that the plaintiff’s first complaint to police described the camp allegations and home allegations but did not mention the park allegations;
(c)the abuse described by the plaintiff, as recorded in the police log when he first spoke to police on 28 December 2016, included oral penetration, fondling, kissing and attempted anal penetration. However, neither the plaintiff’s statement of claim nor his answers to interrogatories mention attempted anal penetration as having occurred at the camp;
(d)the plaintiff’s first sworn statement to the police, dated 4 December 2015, says the camp allegations occurred on three consecutive days only, commencing ‘within a few days of being on the camp’ and after which ‘nothing further happened’, while in the plaintiff’s second sworn statement to the police, dated 18 December 2017, he says ‘the camp went for 10 days and the abuse started on the 2nd morning of the camp. [Weiden] continued to abuse me for the next 8 days of the camp’;
(e)the plaintiff’s first sworn statement to the police describes the home allegations as taking place ‘in next holiday break [sic] after the Christmas holiday camp’. However, his fourth sworn statement to the police on 18 July 2017 says that when the plaintiff said the ‘next holiday break’ after the camp, ‘I mean that the incidents occurred in the same 1974–75 school holiday period and prior to when I became aware that [Weiden] left Australia to travel to Israel … during February 1975’;
(f)the history given by the plaintiff to Dr Bialylew and recorded in her report dated 13 February 2012 says the plaintiff was assaulted by a camp leader over a period of 12 months; and
(g)the plaintiff said to police in his first sworn statement that while on the Ichud Habonim camp he pretended to be sick with a toothache and kept going to the sick bay. However, in the plaintiff’s second sworn statement to the police, he says that he had problems with his teeth immediately following the camp and received nine fillings within two weeks.[9]

[9]Ibid (n 2), [58(a)–(g)].

In his analysis, the associate justice noted that the plaintiff rightly conceded the time since the alleged incidents was significant in this case. His Honour noted that the parties accepted the observations made in the authorities about the effect of the passage of time on memory and the quality of evidence, and that such considerations ‘loom[ed] large’[10] in the case. His Honour also accepted that there were some inconsistencies in the versions of events recounted by YZ in his police statements (notably the number of incidents making up the camp allegations were significantly fewer in the first statement than the second statement), and that Dr Bialylew recorded a history of approximately 12 months of abuse in her medical report. The associate justice considered YZ’s subsequent explanation that the abuse all occurred within the same holiday period, and not ‘in the next holiday break’ as first reported was ‘curious’,[11] but ‘not plainly unbelievable’.[12]
[10]Ibid, [69].
[11]Ibid, [71].
[12]Ibid.

His Honour then noted the following at [72] of the ruling:

In this case the plaintiff has been consistent in his identification of [Weiden] as his abuser and the nature of the abuse that the plaintiff says took place. Inconsistencies in evidence occur in many, if not most, cases and provide fertile ground for cross-examination. The presence of inconsistencies, of itself, is not determinative of whether a permanent stay should be granted. The test remains whether, having regard to all of the circumstances, maintaining the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people. In my view, the inconsistencies in relation to some of the allegations when viewed with the consistency of other allegations, are not such that maintenance of the proceeding would be manifestly unfair to [Weiden].[13]

[13]Ibid, [72].

In considering Weiden’s submissions in relation to the lost opportunity to investigate surrounding circumstances, his Honour noted that the location of the camp allegations was ‘remarkably preserved’,[14] and there was no suggestion that YZ’s house (the alleged location of the home allegations), had been demolished. In relation to the park allegations, his Honour noted at [74] of the ruling:

At this point in time, the plaintiff has given no description of the car where the park allegations occurred and is unable to precisely identify where the car was parked at the relevant times. I note that it is unknowable whether these locations were ever known to the plaintiff or whether they have been lost through the effluxion of time. Overall, the effect of the passage of time has not been uniform in relation to the alleged locations of the abuse but is most significant in relation to the park allegations.[15]

[14]Ibid, [74].

[15]Ibid.

The associate justice acknowledged that ‘given the passage of time, it is impossible to know what evidence has been lost or what evidence may have been given by any particular witness’,[16] including what evidence might have been given by the youth group leader who YZ alleged entered the shower block, and whether such evidence would have assisted YZ or Weiden. His Honour went on to state that ‘the quality of the evidence that might have been available has been significantly adversely affected by the passage of time’.[17]
[16]Ibid, [75].
[17]Ibid.

Further, in respect of the lost medical records and the lost opportunity for Weiden to explore the surrounding circumstances of each offence, the associate justice stated at [76]–[78] of the ruling that:

[Weiden] has not provided any information about the investigations he has undertaken about potential witnesses or surrounding circumstances in relation to the allegations. [Weiden] admits that he was at the camp but otherwise denies the camp allegations, the park allegations and the home allegations. In relation to the park and home allegations, given the relatively short period of time between the camp and [Weiden’s] departure from Australia, coupled with his denial that the park and home allegations occurred, one might expect that the [Weiden] would have investigated his own activities and movements during that time.
While I accept [Weiden’s] submissions about the difficulties caused by the loss of medical records, I also note there is no evidence that [Weiden] has taken any steps to ascertain its specific impact in this case. [Weiden] has not sought to have the plaintiff examined by [his] expert. Without specific evidence about the conclusions that can and cannot be drawn from the available records regarding causation, [Weiden’s] submissions cannot be afforded the weight they might otherwise be given.
Taking into account all of the circumstances of this case, I am not persuaded that [Weiden] has discharged the heavy onus of establishing that to allow the proceeding to continue to trial would be manifestly unfair to [Weiden] or otherwise bring the administration of justice into disrepute among right-thinking people.[18]

[18]Ibid, [76]–[78].

In considering Weiden’s temporary stay application, the associate justice stated that the parties were in agreement about the principles relevant to the prejudice to a defendant in a civil proceeding facing a subsequent criminal proceeding. Further, the parties accepted the principles relevant to a temporary stay application as follows:

The test arises where the same allegations are made in the civil proceeding as in the potential criminal proceeding. The test is whether [Weiden] faces a real risk of criminal proceedings or whether a criminal proceeding is on the cards.[19]

[19]Ibid, [79].

The associate justice identified the issue to be determined as whether, in all the circumstances of this case, it was on the cards that Weiden would face criminal prosecution.[20] His Honour noted that it was common ground between the parties that in November 2018 the police had issued warrants of apprehension to Weiden in relation to a number of charges (with an intent to execute these warrants should he return to Australia), and that the police had considered extraditing Weiden but had declined to apply for his extradition at that stage.
[20]Ibid, [82].

After considering the submissions of YZ and Weiden in this regard, the associate justice stated at [86]–[88] of the ruling as follows:

I am not satisfied that [Weiden] has demonstrated a real risk of criminal prosecution, notwithstanding that warrants of apprehension have been issued. I have reached this view because in this case there is a clear decision by Victoria Police not to pursue [Weiden’s] extradition from Israel. I accept that Victoria Police may revisit that decision if further evidence comes to light or other complainants are identified. Given the nature of [Weiden’s] defence, being a straight denial that any of the incidents making up the allegations occurred, it is unlikely that any evidence given by [Weiden] will be self-incriminating. There is no reason on the evidence before the Court to believe that there are any other complainants currently unknown to the police that will be identified in the proceeding. The evidence of unknown person six was known to the police at the time extradition was considered. The police investigation was closed on 3 January 2019.
There is no evidence that [Weiden] intends to return to Australia for this proceeding nor is there any indication that [Weiden] intends to give evidence in the proceeding.
As long as this remains the status quo, there is not a real risk of criminal prosecution. If those circumstances change, it remains open to [Weiden] to make a further application for a temporary stay of this proceeding.[21]

[21]Ibid, [86]–[88].

The associate justice was not satisfied that Weiden had shown that, in all the circumstances of the case, it was just and convenient that the court should interfere with the plaintiff’s entitlement to have his action tried. Further, his Honour was not satisfied that Weiden faced a real risk of criminal prosecution. For these reasons, his Honour refused to grant a temporary stay of the proceeding.

Nature of appeal from an associate justice

As this is an appeal of a decision of an associate justice, it is conducted by way of a rehearing.[22] This means that, in the absence of further evidence or a change in the law, an appellant is ordinarily required to show factual, legal, or discretionary error on the part of the associate justice before appellate power may be exercised.[23]
[22]Pursuant to Supreme Court Act 1986 (Vic), s 17(3); and Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 77.06; Oswal v Carson [2013] VSC 355, [11] (Oswal) citing Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203–4 [14].
[23]Ascot Vale Self Storage Pty Ltd (in liq) v Nom De Plume Pty Ltd [2019] VSC 794, [72] (affirmed in Nom De Plume v Ascot Vale Self Storage (No 2) [2020] VSCA 70). See also Oswal (n 22); Goode v Common Equity Housing Ltd [2019] VSC 841, [10]; Cohalan and Mitchell Roofing (in liq) [2020] VSC 222, [35]; and Majak v Rose [2021] VSC 599, [17].

To determine whether the decision is infected by such error, the court is required to conduct a ‘real review’[24] of both the evidence and reasons of the associate justice.[25]
[24]Fox v Percy (2003) 214 CLR 118, 126 [25].
[25]Robinson Helicopter v McDermott (2016) 90 ALJR 679, 686–7 [43] (citations omitted).

If the court is satisfied that the associate justice made an error of fact, the court must then make its own findings as to the facts, and formulate its own reasoning based on those findings.[26] However, the authorities warn that in conducting such an appeal, the court should not interfere with the lower court’s findings of fact unless they are demonstrated to be ‘wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”’.[27]
[26]Ibid.
[27]Ibid.

In respect of a discretionary error, if upon the facts the decision at first instance was either unreasonable or plainly unjust, the appellate court may infer that there has been a failure to properly exercise the discretion and a substantial wrong has occurred.[28]
[28]House v The King (1936) 55 CLR 499, 505.

Permanent stay
Principles relevant to the permanent stay application

Amendments made in 2015[29] to the Limitation of Actions Act 1958 (Limitation Act) removed the limitation period that would previously have applied to YZ’s action.[30] However, those amendments did not limit the court’s inherent jurisdiction, and the Limitation Act expressly refers to the court’s power to ‘summarily dismiss or permanently stay a proceeding, where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible’.[31]
[29]Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) s 4.
[30]Limitation of Actions Act 1958 (Vic) s 27P.
[31]Ibid, s 27R.

In Connellan v Murphy,[32] the Court of Appeal considered a defendant’s application for a permanent stay of a damages claim brought in respect of sexual abuse alleged to have occurred between children almost 50 years prior. The question before the court was whether it would be manifestly unfair to the defendant, or would otherwise bring the administration of justice into disrepute, if the claim proceeded. The Court considered that, in addition to the substantial lapse of time, a number of other factors made the proceeding unjustifiably oppressive.[33] These included that the defendant was required to recall events which were said to have occurred when he was 13 years of age; the death of the plaintiff’s mother and the defendant’s parents; that there was some uncertainty as to the correct identity of a potential witness;[34] and that the defendant’s family home, an alleged site of the abuse, had been destroyed. Given those circumstances, the Court concluded that it would be plainly unjust for the plaintiff’s proceedings to continue, and thus it ordered a permanent stay.
[32][2017] VSCA 116 (Connellan).
[33]Ibid, [58]–[59].
[34]Ibid, [15]; [59].

In so deciding, the Court of Appeal outlined the principles relevant to permanent stay applications, which can be summarised as follows:

(a) The court has a power to grant a permanent stay of proceedings if the administration of justice demands it.[35]
[35]Ibid, [30] quoting Jago v District Court of New South Wales (1989) 168 CLR 23, 74.

(b) The interests of justice will demand a permanent stay if the continuation of the proceedings will amount to an abuse of process.[36]
[36]Ibid, [33] quoting Walton v Gardiner (1993) 177 CLR 378, 392–393.

(c) In seeking a stay of the proceedings, the defendant bears a heavy onus.[37]
[37]Ibid, [54(1)].

(d) A stay is ordinarily only granted in exceptional circumstances.[38]
[38]Ibid.

(e) The power to grant a stay is discretionary.[39] If proceedings are an abuse of process however, there is no discretion to refuse a stay.[40]
[39]Ibid, [35] quoting R v Carroll (2002) 213 CLR 635, 657 [73] (Carroll).
[40]Ibid.

(f) The circumstances which constitute an abuse of process are not closed and cannot be exhaustively defined.[41] Notwithstanding that the categories remain open, abuses of process usually fall into one of three categories:
[41]Ibid.

(i) the court’s procedures are invoked for an illegitimate purpose;

(ii) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or

(iii) the use of the court’s procedures would bring the administration of justice into disrepute.[42]
[42]Ibid, [39] quoting Rogers v The Queen (1994) 181 CLR 251, 286.

(g) ‘The fundamental test is whether, in the circumstances, the proceeding would be manifestly unfair to the defendant’, or ‘would otherwise bring the administration of justice into disrepute among right-thinking people’.[43]
[43]Ibid, [54(4)] (citations omitted).

(h) The effects of the lapse of time may be such that a fair trial is no longer possible, and thus the continuance of the action may constitute an abuse of process.[44]

(i) If there is a substantial lapse of time between the relevant alleged events and the time of trial, this can have effects on both the memory of witnesses and the quality of justice.[45] Further, it can make it difficult to investigate and defend the plaintiff’s allegations of sexual assault.[46] This extends to making investigations into issues of causation and quantum more difficult.[47]

(j) Reasonable minds may differ as to whether it is ‘unjustifiably burdensome’ to allow a proceeding involving a substantial lapse of time to continue. The fact that on appeal the court might take a different view from that of the lower court, is not a basis for overturning the primary judge’s decision.[48]

[44]Ibid, [40]–[42] quoting Batistatos v Road Traffic Authority (NSW) (2006) 226 CLR 256, 273 [37], 278 [55], 281-282 [69]–[71] (Batistatos).

[45]Ibid, [44], citing Longman v The Queen (1989) 168 CLR 79 (Longman); Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Brisbane South).

[46]Ibid, [58].

[47]Ibid.

[48]Ibid, [64].

In addition to those general principles relevant to a permanent stay application, the Court of Appeal considered the relevant authorities concerning the effects of delay on memory and the quality of justice. Reference was made to the seminal observations of McHugh J in both Longman v The Queen[49] and Brisbane South Regional Health Authority v Taylor.[50]
[49]Longman (n 45).
[50]Brisbane South (n 45).

Of particular relevance to this appeal, in Longman, McHugh J said that:

The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person's ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine …
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely … Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be …
To the potential for error inherent in the complainant’s evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant’s testimony.[51]

[51]Longman (n 45) 107–8.

The Court of Appeal specifically referred to the problems inherent in meeting allegations about events alleged to have occurred many years ago involving children. The Court cited with approval the comments of Nicholson J in R v Jacobi,[52] where such problems were identified as:

(a)the reliability or the accuracy of a complainant’s recollections about which evidence is given so many years after the events;
(b)the difficulty confronting a trier of fact when assessing the veracity and reliability of a person, not by hearing and observing their evidence given when young, soon after the events are said to have taken place and with the child’s contemporary language and understanding but after hearing and observing evidence given in the language of an experienced adult with all of the possibilities of reconstruction and re-interpretation that this entails;
(c)the difficulty confronting the appellant having to go well back in time to recall, check and verify the accuracy of events about which evidence is given; and
(d)the difficulty confronting the appellant in endeavouring to obtain and produce documentary evidence or oral evidence from other witnesses which might put in question the evidence of a complainant as to events, times and places.[53]

[52](2012) 114 SASR 227.

[53]Ibid, 253 [104].

In Grant v Bird,[54] a permanent stay application was made by the defendant in respect of a damages claim relating to alleged historical sexual abuse by one of its priests. After referring to the principles outlined in Connellan, Keogh J observed that:

A fair trial is not synonymous with a perfect trial. Whether the lapse of time, unavailability of a witness or loss of other evidentiary material results in a trial being so manifestly unfair that a stay should be granted will depend on all the circumstances of the case.[55]

[54][2021] VSC 380 (Grant).

[55]Ibid, [35].

In granting the defendant’s application for a permanent stay Keogh J concluded that, having regard to the effect of the lapse of time on the quality of justice and the reliability of memory, the death of the alleged offender and only potential witness, the vagueness of the date on which the abuse was alleged to have occurred, and the absence of evidence of surrounding circumstances (against which the allegation could be tested), it was ‘manifestly and unjustifiably unfair to require the defendant to meet the case brought against him by the plaintiff.’[56]
[56]Ibid, [59].

In Morton v The Queen,[57] the Court of Appeal expressly considered the impact of a 53 to 56 year delay between the alleged offending and the commencement of a criminal trial. In a joint majority judgment of Beach and Kyrou JJA (Maxwell P dissenting), it was held that a permanent stay should be granted in light of the cumulative effect of presumptive and specific prejudice, which would incurably deprive the accused of a fair trial.[58] This was said to arise from the deaths of a large number of witnesses, the poor memory of a key witness, and the unavailability of floor plans of houses which were the site of the alleged abuse. It was also noted that a lack of precision as to the time and circumstances of the alleged offences seriously impeded the accused’s ability to investigate the existence of an alibi, or other exculpatory evidence.[59]
[57](2020) 281 A Crim R 307 (Morton).
[58]Ibid, 329 [131].
[59]Ibid, 330 [135].

Grounds

Weiden identified the following grounds of appeal in respect of the associate justice’s refusal to grant a permanent stay:

1.In ruling that the proceeding should not be permanently stayed, the learned associate judge erred by:
(a)finding that allowing the proceeding to continue would be neither manifestly unfair to [Weiden] nor bring the administration of justice into disrepute;
(b)taking into account the following irrelevant considerations:
(i)whether [YZ’s] account of the alleged abuse was plainly unbelievable;
(ii)whether [Weiden] had given evidence of his activities and movements at the time of the alleged abuse;

(c)finding that [YZ] had been consistent in identifying the nature of the alleged abuse;
(d)failing to find that [YZ’s] allegations were vague, unreliable and could not be acted upon safely;
(e)finding that expert evidence was required to determine the extent to which [Weiden] was prejudiced by the loss of medical records.

Weiden’s submissions

At hearing, Weiden submitted that ground 1(a) operated simply as a ‘catch-all’, and thereafter proceeded to make submissions in respect of grounds 1(b) to (e). I was urged to find that the associate justice erred in the ways pleaded, and that allowing the proceeding to continue would be manifestly unfair and would bring the administration of justice into disrepute.

Weiden submitted that, in ruling that the proceeding should not be permanently stayed, the associate justice erred by taking into account two irrelevant considerations.

First, it was submitted that his Honour erred when he considered that YZ’s account of the alleged abuse was ‘plainly unbelievable’.[60] The proper inquiry was not whether the account was honest or believable, but whether it could be ‘acted upon safely’[61] given the long period between the alleged abuse and the commencement of the proceedings. In oral submissions, Weiden submitted that the associate justice’s inquiry as to whether or not YZ’s account of the alleged abuse was truthful was setting ‘the bar too high’. Further, it ‘cut across’ long-standing authority that, no matter how honest YZ’s recollection was, the long delay between the occurrence of the alleged abuse and the formal complaint, raised a significant question as to whether his recollection could be acted upon safely.[62]
[60]The ruling (n 2), [71].
[61]Citing Longman (n 45), 107–108.
[62]Ibid.

Second, the associate justice took into account that Weiden did not give evidence of his activities and movements at the time of the alleged abuse.[63] Weiden submitted it was well-settled that there is prejudice inherent in attempting to meet vague historic allegations,[64] and a paucity of evidence by a defendant does not respond to, nor displace, the strength of this proposition. At hearing, Weiden submitted that in commenting on the defendant’s failure to adduce evidence to contest YZ’s allegations for the purposes of a stay application, the associate justice mischaracterised the line of enquiry and shifted the onus from the plaintiff to the defendant. Further it was said that, in so doing, his Honour erroneously weighed one party’s evidence against the other.
[63]The ruling (n 2), [76].
[64]Citing Connellan (n 32), [47].

Weiden submitted that the associate justice also erred in finding that YZ had consistently identified the nature of the abuse. Weiden submitted that there were several inconsistencies between the allegations pleaded, YZ’s reports to police, and his report of the alleged abuse to Dr Bialylew.

Weiden also alleged that the associate justice erred in failing to find that YZ’s allegations were vague, unreliable, and could not be acted upon safely. Weiden referred to the observations of McHugh J in Longman, in particular, the impact of delay on the quality of a plaintiff’s evidence and on a defendant’s opportunity to explore relevant surrounding circumstances.[65] In respect of the issue of reliability, Weiden repeated his submissions which focused on the specific inconsistencies in YZ’s accounts of the alleged abuse.
[65]Longman (n 45), 107–108.

Weiden specifically took issue with the park allegations, which he submitted were so vague as to deprive him of the ability to identify the areas where the alleged abuse was said to have occurred (including Studley Park and Yarra Bend golf course car parks).

Weiden submitted that the associate justice ought have accepted that the vagueness of a childhood recollection rendered the investigation and defence of the alleged abuse problematic.[66] Further, that absent an ability to identify the relevant location of the park allegations, YZ’s evidence could not be tested by reference to physical characteristics of the area.
[66]Citing Connellan (n 32), [57] and Grant (n 54), [50].

Finally, Weiden submitted that the associate justice erred in finding that expert evidence was required to determine the extent to which he was prejudiced by the loss of medical records contemporaneous to the 1979 and 1980 motor vehicle accidents.[67] In so submitting, he relied upon the comments of the Court of Appeal in Connellan,[68] in relation to the issues which may arise in respect of causation and quantum due to a substantial elapse of time. It was submitted that, given the absence of medical records relating to the injuries suffered by YZ in those motor vehicle accidents, his history was dependent upon little more than his own assertions, which resulted in unfair prejudice to Weiden.[69]
[67]The ruling (n 2) [77], as outlined at [39] above.
[68]Connellan (n 32), [58].
[69]Citing Connellan (n 32), [58] and Grant (n 54), [55].

Weiden submitted that the associate justice’s reference to ‘specific evidence’[70] should be understood as a reference to medico-legal opinion. Weiden submitted that a finding that he was required to identify the impact of lost evidence by producing medicolegal evidence was ‘an idea that cuts sharply’ across the principles outlined in Connellan and the recognition of inherent prejudice. Further, Weiden referred to the Court of Appeal’s decision in Lucciano v The Queen[71] as authority for the proposition that a defendant need not, and may not, be able to identify the detrimental impact of lost evidence.[72]
[70]The ruling (n 2), [77].
[71][2021] VSCA 12 (Lucciano).
[72]Ibid [46].

In view of the aforementioned submissions, Weiden submitted that the associate justice erred in finding that expert evidence was required to determine the extent to which Weiden was prejudiced by the loss of records.[73]
[73]The ruling (n 2), [77].

YZ’s submissions

In response to Weiden’s contention that the associate justice should not have asked whether the plaintiff’s account of the alleged abuse was ‘plainly unbelievable’,[74] YZ submitted this was a mischaracterisation of his Honour’s reasons. It was put that the associate justice’s reference to the allegations being plainly unbelievable was merely a factual finding as to alleged inconsistencies identified by Weiden. It was put that if, to the contrary, the associate justice considered YZ’s account to be plainly unbelievable, that would have strongly supported the grant of a permanent stay. It was noted that after making this observation, the associate justice identified and applied the correct test in the following paragraph,[75] which was not impugned on appeal. Therefore, it was submitted that he had not set the bar too high, and there was no error in respect of this aspect of the associate justice’s ruling.
[74]Ibid [71], set out at [35] above.
[75]Ibid [72].

YZ submitted that the associate justice’s consideration at [76] of the ruling[76] was an attempt to weigh up whether or not enquiries that might have been made by Weiden had been thwarted by the passage of time. It was submitted that such a consideration was not merely apt, but was required ‘in order to take into account all considerations in determining whether allowing the proceeding to continue to trial was manifestly unfair to [Weiden]’. YZ submitted this was particularly so in circumstances where Weiden had relied on, inter alia, the claimed loss of opportunity to explore surrounding circumstances.
[76]That Weiden could have given evidence, but did not, of efforts made to investigate his movements and activities at the time of the alleged offending.

YZ submitted that the associate justice’s finding at [72][77] of the ruling was to the effect that, whilst there were some inconsistencies in respect of his accounts, to the extent that they existed, they were not such that maintenance of the proceeding would be manifestly unfair to Weiden, or would otherwise bring the administration of justice into disrepute. YZ submitted that the associate justice considered and dealt with each of the inconsistencies as identified by Weiden in paragraph [58(a)-(g)] of the ruling.[78]
[77]As set out at [36] above.
[78]As referred to above at [34].

In respect of the park allegations, YZ submitted that the relevant location for this abuse was Weiden’s car, or his family car, as identified by YZ in his first statement.[79] Where, precisely, the car was parked at a golf course or elsewhere was said to be of no significance to the particulars of the allegations of abuse. YZ submitted that, in any event, such precise information as sought by Weiden would not assist him in any investigation of the allegations. YZ submitted that, even if he claimed to remember the location of the parked car with more precision than previously given, Weiden could submit that such a recollection was pure reconstruction in the absence of ‘some centring event’ occurring outside the car at the time.
[79]‘A Holden station wagon’ and that Weiden ‘had his driver’s license’ per the first statement [15].

Further, YZ submitted that Weiden’s alleged difficulty to properly explore relevant issues of causation and quantum was not explained. YZ submitted that his claimed injuries were mental disorders resulting from the sexual abuse by Weiden prior to the motor vehicle accidents, and were not physical injuries. YZ submitted that he alleged no on-going significant physical injuries as causative of his claimed incapacity for work or other disability.

Analysis

After having identified the relevant principles set out by the Court of Appeal in Connellan, I am satisfied that the associate justice correctly applied those principles to the case before him. The associate justice synthesised all the relevant circumstances before concluding that a fair trial was possible, and that allowing the proceedings to continue would not bring the administration of justice into disrepute.

The reference by the associate justice to YZ’s complaints being ‘not plainly unbelievable’ was merely his assessment of YZ’s account regarding the timing of the home allegations. In reading the associate justice’s reasons as a whole, it is patently apparent that this was just one of many considerations that his Honour had regard to. I reject Weiden’s submission that the use of this phrase indicated that the associate justice set the bar too high and applied the wrong test. If YZ’s allegations or explanations of alleged inconsistencies were plainly unbelievable, that would have been a factor relevant to a finding that continuation of the proceedings would have brought the administration of justice into disrepute. For those reasons, this assessment by the associate justice was not an irrelevant consideration, and there was no error by him in making such an observation. Therefore, ground 1(b)(i) must fail.

A similar conclusion can be drawn in respect of the associate justice’s comment that Weiden had not provided any information about investigations undertaken by him as to potential witnesses or the surrounding circumstances of the allegations, or, in particular, as to his own activities and movements during that time.[80] When read as a whole, his Honour’s remarks in this regard were made in response to Weiden’s submission that, due to the passage of time, he had lost the opportunity to explore surrounding circumstances of the allegations.
[80]At [76] of the ruling, set out at [39] above.

Noting that the defendant bears the onus in a stay application, it is possible, but not obligatory, for a defendant seeking a stay to go on affidavit as to the investigations undertaken relative to the claim they are seeking to defend. It is apparent from his Honour’s reasons that he did not draw an adverse inference from the failure of Weiden to do so. Rather, it was simply an observation by the associate justice that, in the circumstances of the case, this was something that might have been expected.

Of course, it is not necessary for a defendant to be able to identify evidence that has been lost, in order for that loss to bear on the question of whether a fair trial can be had.[81] Indeed, the associate justice expressly acknowledged that ‘given the passage of time, it is impossible to know what evidence has been lost or what evidence may have been given by any particular witness’.[82] This comment is not inconsistent with the associate justice’s observation that there was no evidence put forward by Weiden as to the surrounding circumstances. Further, this consideration was not determinative of the application, and instead, it must be seen as one of the many factors his Honour considered in his determination of the permanent stay application. Therefore, ground 1(b)(ii) must also fail.
[81]Lucciano (n 71), [44] affirming McGee v The Queen [2020] VSCA 146, [145].
[82]The ruling (n 2), [75].

The associate justice’s reasons acknowledged the inconsistencies in the versions of events recounted by YZ,[83] although his Honour commented that not all of those inconsistencies could necessarily be attributed to YZ changing his story. I accept that, at trial, YZ may be cross examined on the alleged inconsistencies contained in records created by doctors and police so as to determine whether he provided those details, or whether they were incorrectly recorded. YZ may also be cross-examined on inconsistencies in his own statements, and the explanations he subsequently offered for them.
[83]The ruling (n 2), [70].

I am satisfied the associate justice was correct to hold that the presence of some inconsistencies in YZ’s account should not be determinative of the application. Instead, his Honour considered such inconsistencies in the context of the otherwise consistent complaints made by YZ in respect of the identification of Weiden, and the location and nature of the abuse. I am satisfied that this too was the correct approach – his Honour expressly considered whether, in all the circumstances, maintaining the proceedings would be manifestly unfair to Weiden or would otherwise bring the administration of justice into disrepute. There was no error by the associate justice in this respect, and for those reasons, the ground of appeal in respect of 1(c) must fail.

The same can be said in relation to Weiden’s complaint that the associate justice erred in failing to find that YZ’s allegations were vague, unreliable, and could not be acted upon safely. I do not consider this to be a fair categorisation of the multiple allegations made by YZ. As noted above, those inconsistencies may be tested under cross-examination. Until such time, I am not satisfied that the allegations can be fairly described as vague and unreliable, such that they cannot be acted upon safely. Ground 1(d) also fails.

The final ground of appeal alleged was that the associate justice erred in finding that expert evidence was required to determine the extent to which Weiden was prejudiced by the loss of medical records.

I consider Weiden’s submissions in respect of the associate justice’s comment that there was no evidence as to the impact of the prejudice arising from the loss of the medical records, to be misconceived. This was not a standalone consideration by the associate justice, but rather, a factor which was part of his Honour’s overall evaluation of the circumstances pertaining to the proceedings, and whether a permanent stay should be granted.

In applications for an extension of time made by a plaintiff pursuant to s 23A or s 27K of the Limitation Act, the onus is on the plaintiff to satisfy the court that it is just and reasonable to extend the limitation period.[84] In such applications, a defendant will often file affidavit material in support of a claim of specific prejudice arising from the delay. In a stay application, the defendant carries the heavy onus of persuading the court that a stay should be granted. It is open to a defendant to file affidavit material to support a claim of specific prejudice. Therefore, it cannot be said that the associate justice erred for commenting on the absence of such material.
[84]Griffiths v Nillumbik Shire Council [2022] VSCA 212, [68(1)].

The ruling contained an express acknowledgement by his Honour that he accepted Weiden’s submissions in relation to the difficulties associated with the loss of records. This comment is consistent with the observations made by the Court of Appeal in Connellan. It cannot be said that the associate justice erred in the way alleged. For those reasons, ground 1(e) must also fail.

Having dealt with each of the standalone grounds, I return to ground 1(a), that being the overarching ground of appeal that the associate justice erred in finding that allowing the proceedings to continue would be neither manifestly unfair to Weiden, nor bring the administration of justice into disrepute.

It is well established that a substantial elapse of time between the alleged events and the time of trial can have adverse effects on the memory of witnesses and the quality of justice.[85] These effects may be such that a fair trial is no longer possible, and that continuance of the action may therefore constitute an abuse of process.[86] In his ruling, the associate justice acknowledged the dangers associated with claims involving substantial delay and expressly stated that such considerations loomed large in his consideration of the application. As previously stated, it cannot be said that the associate justice approached his task on too narrow a basis, and without proper regard for the relevant principles.
[85]Connellan (n 32), [44], citing Longman (n 45) and Brisbane South Regional Health Authority (n 45).
[86]Batistatos (n 44) [69]–[71].

The associate justice relevantly noted that the effect of the passage of time was most significant in relation to the park allegations.[87] YZ did not provide any description of the car where the park allegations occurred, save for in the first police statement in which he described it as a ‘mid-1960s Holden station wagon’ belonging to Weiden, or to his family. YZ was also unable to precisely identify where the car was parked at the relevant times. I accept that there will inevitably have been changes to Studley Park and Yarra Bend Park in the substantial period of time since the abuse is alleged to have occurred. However, I also accept that it is difficult to ascertain whether these locations were ever in fact known to YZ (given he was a child at the time) or whether such locations have been lost through the effluxion of time.
[87]The ruling (n 2), [74].

YZ’s particulars of the park allegations are consistent in identifying Weiden as the alleged offender. YZ’s police statements are also consistent in their description of the park allegations; that they were committed by Weiden inside a car, and that the period when this occurred was (consistently) in the same 1974–75 school holiday period as the camp allegations. Therefore, I do not consider the precise location of the car within those parks to be of such significance that a permanent stay is required in order to avoid unfair prejudice to Weiden.

It is relevant to note that a fair trial is not synonymous with a perfect trial.[88] Whether a trial is so manifestly unfair depends on all the circumstances of the case.[89]
[88]Grant (n 54), [35].
[89]Ibid.

Unlike the proceedings in Connellan, Grant and Morton, this is not a case where the trial would proceed with ‘mere scraps of evidence’.[90] Given the details of abuse contained in YZ’s multiple statements, witness statements, photographic material, and the apparent preservation of the relevant locations of the abuse (save for the car), it was open to the associate justice to conclude that, notwithstanding that almost 48 years have passed since the alleged abuse occurred, Weiden failed to discharge the heavy onus required of him in seeking the permanent stay.
[90]Connellan (n 32), [65].

As was noted in Connellan, reasonable minds might differ as to whether it is ‘unjustifiably burdensome’ to allow a proceeding involving a substantial elapse of time to continue.[91] The fact that on appeal the court might take a different view than the lower court is not a basis for overturning the primary judge’s decision.[92] Rather, on appeal, the court should only interfere if discretionary error is demonstrated or if the court is satisfied that the continuance of the proceedings would be an abuse of process.[93] For all of the reasons outlined above, I am not persuaded that the associate justice erred in refusing to grant a permanent stay of the proceeding. Therefore ground 1(a) must also fail.
[91]Ibid, [64].
[92]Ibid.
[93]Carroll (n 39), 657 [73].

Admission of further evidence

Weiden sought leave to admit a medical report from Dr Graeme Doig dated 30 June 2022. This report was commissioned by Weiden subsequent to the hearing before the associate justice. In his report, Dr Doig opined that YZ’s diagnoses were difficult to state with ‘any accuracy’ as no medical documentation had been provided to him pertaining to the motor vehicle accidents.

Weiden submitted that this report should be admitted as fresh evidence, as he could not have anticipated the associate justice’s comment about a lack of medico-legal opinion evidence, given there was no precedent for such a finding. Weiden contended that the report was probative and, if admitted, was likely to demonstrate that it would be manifestly unfair to allow the proceedings to continue, and would otherwise bring the administration of justice into disrepute.

YZ submitted that the report of Dr Doig had no probative value for the purpose of the stay application. He submitted that the report did not highlight any forensic problem faced by Weiden to explore issues of causation and quantum. Further, YZ submitted that Weiden did not provide Dr Doig with any documents for review prior to his assessment other than the psychiatric reports of Dr Bialylew and Professor Dennerstein. YZ noted that, at the time the report was commissioned, Weiden was in possession of YZ’s clinical records from six separate clinics which covered the period of August 2007–2022. YZ submitted that, as Weiden had not provided Dr Doig with available comprehensive clinical records, the relevance of the contemporaneous records which may have assisted Dr Doig’s assessment could not be known. Finally, YZ submitted that, in these circumstances, it would be ‘demonstratively unfair to permit the admission of the report of Dr Doig, particularly if its admission would materially affect the outcome of the appeal.’

YZ submitted that, in the event that I was prepared to admit the report as further evidence, the opinion of Dr Doig (referred to above at [93]) was a ‘throw away’ comment, as immediately thereafter he diagnosed various conditions, including traumatic osteoarthritis, which he based on (in part) his examination of YZ. Further, YZ submitted that Professor Dennerstein provided a comprehensive report which included his opinion as to YZ’s physical injuries and other potential disorders, notwithstanding an absence of medical records contemporaneous to the motor vehicle accidents.

Analysis

Rule 77.06.9(2)(a)[94] provides that, on appeal, the court may receive further evidence by oral examination in court, by affidavit, or by deposition taken before an examiner.[95] However, as this is a rehearing and not a de novo appeal, the admission of further evidence is not an automatic entitlement.
[94]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 77.06.9(2)(a) (the Rules).
[95]Ibid.

In Fanniesab Pty Ltd v Futistasera Pty Ltd,[96] Digby J identified the key factors relevant to the exercise of a court’s discretion to admit further evidence in an appeal of an associate justice as:

(a) the further evidence is admissible and potentially probative;
(b)the further evidence, if accepted, would be likely to demonstrate that the order under appeal is erroneous, or is in some way unjust or unfair, and in all the circumstances should be set aside and/or supplemented or replaced by other orders;
(c)there are sufficient reasons, or other justification given by the applicant as to why the further evidence was not adduced at first instance; and
(d)admission of the further evidence would in the circumstances be unacceptably prejudicial, or unfair.[97]

[96][2016] VSC 359.

[97]Ibid, [16].

More recently in Chiodo Investments Pty Ltd v Rilac Pty Ltd,[98] John Dixon J analysed the types of appeals heard by this court and discussed the principles relevant to the admission of further evidence. In respect of an appeal of a decision of an associate justice, his Honour stated that:

In the ordinary case, an appeal will be determined on the evidence that was before the associate judge, but there will be exceptional cases where to refuse to admit fresh evidence would affront common sense or a sense of justice and would not further the overarching purpose of civil litigation.[99]

[98][2023] VSC 32.

[99]Ibid, [27].

Having considered the parties submissions, I am not minded to admit fresh evidence in the form of Dr Doig’s report in this appeal. As explained above, it was always open to Weiden to obtain a medico-legal opinion as to the specific difficulties arising from the lack of contemporaneous medical records.

However, even if I accepted Weiden’s explanation for not seeking this opinion sooner and was persuaded to admit this further evidence, I have concluded that, in any event, Dr Doig’s report does not support Weiden’s contention that the associate justice erred in his findings. Dr Doig’s opinion accords with what logically follows from a lack of contemporaneous medical records – it makes coming to a diagnosis difficult. I note Dr Doig nevertheless offers an opinion based on the history he had obtained from YZ. I also note that Professor Dennerstein was able to offer an opinion as to YZ’s claimed injuries.

The Court of Appeal in Connellan acknowledged the difficulties that arise in investigating causation and quantum when there has been a substantial elapse of time. The associate justice expressly acknowledged the difficulties faced by Weiden in this respect. His Honour’s further comments formed part of his analysis of all of the relevant circumstances in this case, and his overall assessment as to whether a trial would be manifestly unfair, or would otherwise bring the administration of justice into disrepute.

For those reasons, I am not satisfied that Dr Doig’s report is sufficient to demonstrate error on the part of the associate justice’s ruling in respect of the permanent stay.

Temporary stay

The court has a wide jurisdiction to temporarily stay proceedings in the interests of justice. This is an incident of its general power to control its own proceedings,[100] recognised under s 30 of the Supreme Court Act 1986.
[100]5 Boroughs NY Pty Ltd v State of Victoria (No 3) [2023] VSC 22, [48] (5 Boroughs), citing Obeid v Commissioner of Taxation [2017] FCA 1135, [2]; Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562, [53]; Impiombato v BHP Group Limited (2020) 143 ACSR 301, 325 [122].

The principles applicable to an application to stay a civil proceeding pending the determination of criminal proceedings, relating to the same or similar subject matter, have been outlined and discussed in numerous authorities.

In Zhao v Commissioner of the Australian Federal Police,[101] the Court of Appeal considered an application for a temporary stay sought in civil forfeiture proceedings under the Proceeds of Crime Act 2002 (Cth), pending the hearing and determination of related criminal proceedings. At the time of the application, Mr Jin had been charged with offences, and his trial was listed for the following year. In support of his application for a temporary stay, Mr Jin contended that if he was required to give evidence as to his purchase of a particular property, there was a real risk he would prejudice his defence in the criminal proceedings, and he would effectively waive his right to silence. The Court of Appeal concluded that there should be a stay of the forfeiture proceedings until the hearing and determination of the criminal proceedings, or further order of the court. It was satisfied that, without a stay, Mr Jin would be required to telegraph his likely defence, and the prosecution would receive an advantage which would render the subsequent criminal trial unfair. In so deciding, the Court of Appeal recognised the primacy of the accused's right to a manifestly fair criminal trial when considering a stay application.
[101](2014) 43 VR 187.

In the subsequent High Court appeal, Commissioner of the Australian Police v Zhao,[102] the High Court was satisfied that the interests of justice were not served by requiring Mr Jin to defend the forfeiture proceedings before his criminal proceedings were finalised, and the appeal was dismissed.[103]
[102](2015) 255 CLR 46 (Zhao).
[103]Ibid 61, [50]–[51].

In Crespin v Francis,[104] J Forrest J (as he then was) considered an appeal of a VCAT member’s refusal to grant a temporary stay, in circumstances where concurrent civil proceedings (at VCAT) and criminal proceedings (in the County Court of Victoria) were on foot. In dismissing the appeal, J Forrest J outlined the relevant principles as identified in previous decisions, including those of the Court of Appeal and High Court in Zhao. His Honour then stated that:

[W]here a civil proceeding creates a real risk of prejudice to the defence for the criminal charges – which I infer to be one that is not fanciful or remote – then the applicant should, absent a dominant contradictory consideration, be entitled to a stay of the civil proceeding.
Moreover, both decisions [in Zhao] demonstrate that there should be a focus in an application such as this on the risk of prejudice (and whether it is real) to the accused in the criminal trial in determining whether to grant a stay or not.[105]

[104][2016] VSC 277 (Crespin).

[105]Ibid, [26]–[27].

The principles from Zhao and Crespin were subsequently applied by Croucher J in Stocks v Johns (No 2),[106] which concerned an appeal against a judicial registrar’s temporary stay of a civil damages proceeding. Following a criminal jury trial, the defendant had been found guilty of recklessly causing the plaintiff serious injury in a transport accident. She had appealed the verdict and sought a stay of the civil proceedings, pending the outcome of the criminal appeal, and if successful, her re-trial. In refusing the application, Croucher J appeared to accept that the relevant test (as submitted by the plaintiff) was consistent with the applicable law in entailing:

a balancing of the prejudice to and interests of the plaintiff, who is ordinarily required to have his or her case heard without delay, and any prejudice to and interests of the defendant, particularly with respect to the issue of possible self-incrimination vis-à-vis the criminal matter.[107]

[106][2019] VSC 854 (Stocks).

[107]Ibid, [37], [61].

Justice Croucher was not satisfied that there was a real risk of prejudice to the defendant in maintaining her right to silence, in part as she had made some admissions immediately after the transport accident. His Honour considered it highly probable that the statutory authority would admit liability on behalf of the defendant in the civil proceeding and that the matter would proceed as an assessment of damages. In considering the prejudice to the plaintiff in staying the civil action, his Honour noted two interrelated factors.[108] First, that it had been over five-and-a-half years since the collision and the resulting injury.[109] Second, that the plaintiff was 70 years of age, in a parlous state, and was, to some extent, reliant on family for support.[110] In weighing up all the relevant factors, Croucher J considered it was in the interests of justice for the civil claim to proceed.[111]
[108]Ibid, [70].
[109]Ibid.
[110]Ibid, [72].
[111]Ibid, [72].

Most recently, in 5 Boroughs NY Pty Ltd v State of Victoria (No 3),[112] the plaintiff (on behalf of a group of Victorian businesses) claimed damages from the State of Victoria for breach of its duty to take reasonable care in the implementation of infection prevention controls at quarantine hotels, which resulted in the spread of Covid-19, consequential lockdown measures, and ultimately economic loss to the plaintiff and group member businesses. The State made an application to stay the civil proceeding pending the resolution of the criminal prosecution against it by the Victorian Workcover Authority. The basis for the application was that a stay of the group proceeding was necessary for the State to receive a fair criminal trial. The principles (adopted from Moshinsky J’s summaries in Australian Securities and Investments Commission (ASIC) v Australia and New Zealand Banking Group Ltd[113] and Impiombato v BHP Group Ltd[114]) were helpfully set out by John Dixon J as follows:
[112]5 Boroughs (n 100).
[113]Australian Securities and Investments Commission (ASIC) v Australia and New Zealand Banking Group Ltd (2019) 138 ACSR 42, 55–8 [50]–[63].
[114]Impiombato v BHP Group Limited (2020) 143 ACSR 301, 325–8 [122]–[136].

(a)… courts have the power to control their proceedings and to order a stay in an appropriate case, which is one where the interests of justice require such an order.
(b)A plaintiff is prima facie entitled to have his, her or its civil action tried in the ordinary course and a stay therefore requires justification on proper grounds (with the applicant for a stay bearing the burden of demonstrating proper grounds).
(c)It must be apparent that the defendant/applicant (the accused) is at risk of prejudice in defending the criminal trial. The risk of prejudice must be real. A civil proceeding will not be stayed merely because criminal proceedings are pending against the defendant in respect of related allegations.
(d)In evaluating prejudice, the following factors, when present, may be relevant:
(iii)prejudice to the accused’s right to silence or privilege against self-incrimination;
(iv)the possibility of publicity that might reach and influence jurors;
(v)It may not be necessary for the applicant for the stay to state the specific matters of prejudice before a stay could be contemplated;
(vi)Various forms of protective orders may ameliorate prejudice, subject to the possibility that such orders may be inadequate protection of an accused’s rights.[115]

(e)Relevant prejudice to a party in the civil proceeding may arise from the existence of the criminal proceeding even in circumstances where there is not a strict identity between the applicant for the stay of the civil proceeding and the criminal accused, for example, where the accused would be a material witness in the civil proceeding.
(f)The risk of prejudice identified by an applicant for a stay must be weighed against the prejudice that a stay of the civil proceeding would occasion.
(g)The principles relevant to the exercise of the discretion to grant a stay are not different in the case of a proceeding brought by a regulator, from those that apply in the case of a proceeding brought by a private plaintiff.
(h)In an appropriate case, the civil proceeding might proceed to a certain stage, eg setting down for trial, and then be stayed.
(i)Each case must be judged on its own merits; the matters that might individually, or in combination, be relevant to the exercise of the discretion are not rigid or closed; the factors identified in the authorities are not a prescriptive or an exhaustive statement of all of the considerations, or the weight to be attached to them.[116]
[115]The numbering of subparagraphs (iii)–(iv) although appearing incorrect, reflects those in 5 Boroughs (n 100).

[116]5 Boroughs (n 100), [55].

Further, John Dixon J stated that ‘whether there is prejudice to an accused that may render a criminal trial unfair is a question of fact that must be evaluated with care’.[117]
[117]Ibid, [52].
Ultimately, John Dixon J was not satisfied that it was presently in the interests of justice to grant the State’s application to stay the group proceeding so as to preclude all further interlocutory steps until resolution of the criminal prosecution.[118] His Honour noted that the proceeding was subject to close case management and appropriate directions could be given, or protective orders made, as necessary to balance competing concerns with respect to each step in the proceeding.[119] Further, his Honour did not shut out the State from making a further stay application at a later point in time in the event of changed circumstances in the civil proceeding.
[118]Ibid, [56].
[119]Ibid, [3].

In Zhao, Crespin, Stocks and 5 Boroughs, criminal proceedings were on foot. Where criminal proceedings are not yet commenced, it is necessary for the court to be satisfied that such criminal proceedings are ‘on the cards’.[120] This has been interpreted as meaning ‘reasonably possible’, or a ‘reasonable possibility’.[121] To be so satisfied, it is not necessary for there to have been a decision to prosecute, nor even a decision to send a brief to the relevant prosecuting authority.[122]
[120]See for example, Citation Resources Ltd v Landau (2016) 116 ACSR 410, 420–423, [41]–[42], [49] (Citation Resources).
[121]CC Containers Pty Ltd v Lee (No 2) [2012] VSC 149, [15]; Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562, [117].
[122]Citation Resources (n 120), 423–4 [49]–[51] discussing ASIC v Craigside Company Ltd (2013) 93 ACSR 176; [2013] FCA 201, ASIC v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487 (HLP).

In Citation Resources Ltd v Landau,[123] an indefinite stay was sought by Mr Landau in respect of civil proceedings brought against him for breach of director duties, on the basis that ASIC was also investigating his conduct, and may subsequently prosecute him. The issue before the court was whether there was ‘anything like sufficient evidence’ that it was ‘on the cards that Mr Landau would face criminal prosecution’.[124] In refusing the application, McKerracher J considered that it was premature to conclude that a criminal prosecution in relation to the matters the subject of the pleaded case was ‘on the cards’.[125] In reaching this conclusion, McKerracher J expressly noted a significant factor was the plaintiff’s entitlement to bring its case to court, whilst acknowledging that, in the event that criminal proceedings were subsequently issued, the question of a stay could be revisited.[126]
[123]Citation Resources, (n 120).
[124]Ibid 421, [42].
[125]Ibid 424, [54].
[126]Ibid.

In Lucciano v The Queen,[127] the Court of Appeal considered an appeal of a criminal conviction in respect of sexual offences alleged to have been committed over 56 to 57 years prior to trial. Those allegations had, in the year before the criminal trial, been litigated in a civil proceeding brought by the complainant against the accused. In the civil proceeding, the complainant received judgment in the sum of $215,000. The accused was unaware and unsuspecting of the criminal proceedings during the course of the civil proceedings, and provided discovery and gave evidence at the civil trial. Soon after the civil trial concluded, the accused was charged with criminal offences. The Court of Appeal noted that the informant used the civil transcript as part of the criminal investigation. The prosecutor also accepted that he used that transcript to prepare for the criminal trial, including evidence given by the accused and other witnesses. It was also noted that the complainant sat through the civil trial and saw the evidence relied upon by the accused.
[127]Lucciano (n 71).
The Court of Appeal considered that the period of the delay, as well as prejudice arising from the prior civil trial, was such that it was not possible for there to have been a fair criminal trial, and thus allowed the appeal. In discussing the presumptive prejudice to the accused arising from the civil trial running first, it was noted that:
[B]y running a civil trial in ignorance of the true position, the applicant had, in effect, been required to go into evidence about the subject matter of the charges, before those charges were laid. The applicant was effectively required to take this course because the evidence of the complainant in the civil trial would otherwise have been unanswered, in a case determined on the balance of probabilities. This had the practical effect of depriving him of the right not to answer questions or give evidence in respect of the criminal charges. It also ‘locked’ him into that evidence in a manner that was inimical to the accusatorial system of criminal justice.[128]
[128]Ibid, [26].
In Villanv State of Victoria,[129] Keogh J considered whether it was in the interests of justice to require EFG, a person alleged to have committed sexual offences, to give evidence in a civil trial, after the plaintiff gave evidence that he intended to report allegations of sexual abuse (the subject of his civil damages claim) to the police. Whilst it was possible to grant EFG a certificate under s 128(5) of the Evidence Act 2008 (Vic), his Honour acknowledged that this would not protect him from prejudice in a criminal proceeding.[130] His Honour also recognised, however, that if EFG was not required to give evidence the defendant could not fairly defend the case.[131]
[129][2021] VSC 354 (Villan).
[130]Ibid, [16].
[131]Ibid, [23].
In circumstances where the most significant issue was whether the abuse occurred, Keogh J considered that EFG would be subject to rigorous cross-examination challenging his credit and reliability.[132] If this were permitted, the accusatorial judicial process in relation to the prosecution of EFG would have been fundamentally altered.[133] In view of those potential risks, Keogh J held that it was not in the interests of justice to order EFG to give evidence in the civil trial, and concluded that a temporary stay was necessary until determination of any pending criminal investigation and resulting prosecution.
[132]Ibid, [24]–[25].
[133]Ibid, [27].
Grounds

Weiden identified the following grounds of appeal in respect of the associate justice’s refusal to grant a temporary stay:

2.In ruling that the proceeding should not be temporarily stayed, the learned associate judge erred by:
(a)failing to find that [Weiden’s] participation in the proceeding created a real risk of prejudice in his future criminal proceedings;
(b)finding there was no real risk that [Weiden] would face criminal prosecution;
(c)finding that it was unlikely that any evidence given by [Weiden] in the proceeding would be self-incriminating;
(d)failing to take into account that [Weiden] could not fairly defend the proceeding without giving evidence, as the only other direct evidence of the alleged abuse was that of [YZ];
(e)taking into account an irrelevant consideration, namely, whether [Weiden] intended to give evidence in the proceeding.

Weiden’s submissions

Weiden submitted that it was ‘tolerably clear’ that if he was required to attend the trial to give evidence he would be arrested and prosecuted. Even if he was permitted to give evidence via video link, there was a likelihood that new evidence would come to light and result in his extradition from Israel.

Weiden submitted that he would be forced to give evidence in the proceeding in order to defend YZ’s claim. In doing so, Weiden submitted that he would expose himself to the following prejudice:

(a)The prosecution would gain a transcript of the parties’ evidence. This proceeding would serve as a dress rehearsal for the criminal trial.[134]
(b)The prosecution may become aware of witnesses that they would not otherwise have discovered.
(c)YZ will see Weiden’s evidence and may use this knowledge to craft his evidence for the criminal trial.[135]
(d)Weiden will be constrained by the evidence he gives in this proceeding; and will lose the opportunity to put the prosecution to its proof.[136]
(e)The jury in the criminal trial may become aware of the outcome in this proceeding, which could adversely impact its verdict.[137]
(f)The charges on indictment can be framed with the benefit of Weiden’s evidence.[138]

[134]McLachlan v Browne (No 9) [2019] NSWSC 10, [38]; Queensland v Shaw [2003] QSC 436, [25].

[135] Lucciano (n 71), [34].

[136]See X7 v Australian Crime Commission (2013) 248 CLR 92, 127 [71].

[137]HLP (n 124) 504, [59].

[138]Lucciano (n 71), [28].

Further, Weiden contended that the witnesses to be called by the parties, the evidence of those witnesses, the evidence that might arise during his cross examination, and the inquiries that might be made by the informant in response to this evidence, cannot be known. Weiden submitted that, for these reasons, a pleaded denial ‘is not a panacea to self-incrimination’.

Weiden submitted that the associate justice erred by failing to take into account that he could not fairly defend the proceeding without giving evidence, as the only other direct evidence of the alleged abuse was that of YZ.[139] Weiden relied on Villan as authority for the principle that a defendant cannot fairly defend a civil case without giving evidence where the only other direct evidence of abuse would be that of the plaintiff.[140]
[139]The ruling (n 2) [87], set out at [42] above.
[140]Villan (n 129), [23]; [27].

Weiden submitted that he was entitled to reserve his right to put on direct evidence in defence of the alleged abuse, particularly at a preliminary stage in the proceeding. Weiden contended that this course was consistent with the maintenance of his right to object against giving evidence that risked self-incrimination. He submitted that, viewed in this context, this was not a course that spoke to the likelihood of his attendance at trial.

Weiden submitted that the associate justice also erred in taking into consideration whether he intended to give evidence in the proceeding.[141]
[141]The ruling (n 2) [87], set out at [42] above.

Weiden submitted that it was not relevant for the associate justice to adopt an assumption as to whether or not he would give direct evidence. Further, that this assumption was unreasonable as, in a case where there is no other direct evidence of the alleged abuse, a fair and successful defence would be likely to require Weiden to give evidence at trial.

For those reasons, Weiden urged me to find that the associate justice had erred in his refusal to grant a temporary stay, and that in considering the matter afresh, I should make such an order.

YZ’s submissions

In reply, YZ contended that Weiden’s submissions in respect of the temporary stay misunderstood the purpose of permitting a defendant to stay civil proceedings where there is a real risk of criminal prosecution. YZ submitted that the purpose of granting a stay is to ensure, to the extent possible, that the defendant has a fair criminal trial.[142]
[142]Citing Villan (n 129), [27]–[29].

YZ submitted that, in circumstances where it is within the defendant’s power to enable the criminal prosecution to proceed by returning to Australia, and the defendant eschews that opportunity and thereby prevents the risk of prosecution materialising, the purpose of granting a stay in the civil proceeding ‘evaporates’. Further, that if, in so doing, it leads to some unfairness in a subsequent criminal prosecution it would be the defendant, by his own choice, who would be responsible. YZ submitted that in no such circumstances would it be just for a civil litigant to be deprived of their right to bring a proceeding to court.

YZ contended that, contrary to Weiden’s submissions as set out at [122] above, notwithstanding that his failure to give evidence would inevitably be deleterious to his defence in this proceeding, it remained his choice whether or not to give evidence.

YZ submitted that given the determination by the police not to extradite Weiden from Israel, it was ‘difficult to envisage a situation’ where circumstances would arise that would change the landscape of the decision to extradite. As such, it was said that there was no real risk of criminal prosecution.

YZ submitted that the practical effect of a temporary stay was a ‘defacto’ indefinite or permanent stay because it placed YZ’s ability to pursue his civil claim either in the hands of Weiden, or in the hands of the police in respect of a decision to extradite – both of which have no timeline.

YZ submitted that the associate justice was correct in describing Weiden’s defence as a straight denial. YZ submitted that Weiden’s defence involved a denial not just of the abuse, but also of any surrounding circumstances other than that he had been on the camp.

YZ submitted that, given the necessity of taking the aforementioned circumstances into consideration, the finding that it was unlikely that Weiden would be at risk of prosecution was correct and clearly open to the associate justice. Further, Weiden’s submissions as set out at [122]-[123] above were no more than ‘untethered hypotheses’ that should not be given any weight, particularly given the absence of any indication that Weiden intends to give evidence at trial.

YZ submitted that it remained the case that, if Weiden returned to Australia to give evidence in the proceeding, this new fact would likely have great weight on the outcome of a renewed temporary stay application. Until then, it was submitted that there was no unfairness to Weiden which could be considered in determining the application.

Finally, YZ submitted that although Weiden’s right to reserve his position with respect to giving evidence is ‘undoubted’, in exercising that entitlement, there was no evidence he would return to Australia or seek to give evidence at trial. YZ submitted that the absence of that evidence enabled, or further that it compelled, an inference to be drawn that Weiden would be unlikely to return to Australia and there was therefore no real risk of a criminal prosecution.[143]
[143]The ruling (n 2), [87].

Analysis

The associate justice concluded that there was no real risk of criminal prosecution, as the police had made a ‘clear decision’ not to pursue Weiden’s extradition from Israel and this status quo would remain.[144] Ultimately, I agree with the associate justice’s decision not to grant a temporary stay of the proceeding. However, in my view, the conclusion reached by the associate justice that there was no indication that Weiden intends to give evidence in the civil proceeding was glaringly improbable and constituted an error of fact.
[144]Ibid, [86]–[87].

The most significant fact in issue in this proceeding is whether or not the abuse, as alleged by YZ, occurred. As was noted by Keogh J in Villan, a case of this type cannot be fairly defended unless the alleged offender gives evidence.[145]
[145]Villan (n 129), [23].

At hearing, YZ accepted that Weiden’s conduct in the proceeding thus far was ‘at least indicative’ of an openness to defend the civil trial. In my view, this was an appropriate concession. Weiden has filed a defence denying the allegations, and his solicitors have actively pursued a stay application, including this appeal. The only other direct evidence of the alleged abuse is that of YZ. It therefore follows that if the civil proceedings are to continue, Weiden will be required to give evidence in order to defend the case brought by YZ.

It was also sensibly accepted by YZ that, subject to leave from the trial judge, it would be possible for Weiden to give evidence in the civil proceeding via video-link,[146] without the need for him to return to Australia.
[146]Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 42E.

In view of these factors, I am satisfied the associate justice erred in concluding that there was no indication that Weiden intends to give evidence in the proceeding. Given I am satisfied of such error, I am now required to consider Weiden’s application for a temporary stay afresh.

Determining if a temporary stay should be granted in the interests of justice requires consideration of whether criminal prosecution is a ‘reasonable possibility’ or ‘on the cards’, and the weighing of prejudice to both Weiden and YZ.

At the outset, I consider the circumstances of this case are somewhat unique. At hearing, the parties agreed that it was unlikely that Weiden would, of his own volition, return to Australia. The practical effect of a grant of a temporary stay at this time would therefore mean YZ’s ability to pursue his civil claim would be in the hands of Weiden or the police. Unless Weiden decides to voluntarily come to Australia, or the police re-consider its decision in respect of Weiden’s extradition, it is probable the grant of a temporary stay will apply indefinitely.

In my view, there is not sufficient evidence to presently conclude that it is on the cards that Weiden will face criminal prosecution. Given the agreement as between the parties that Weiden will not voluntarily come to Australia, and, at present, the police have decided not to pursue Weiden’s extradition, it will only be if circumstances change so as to cause the police to reconsider the decision (to extradite Weiden) that it could be said that prosecution of him is on the cards.

The evidence before me is that the police will not proceed with an extradition unless new evidence comes to light. After several years of investigating the matter, given that it is a one-on-one complaint and there is already a substantial delay concerning the allegations of abuse, it is understandable why, without more, criminal proceedings will not be pursued.

It follows therefore, that it if this proceeding against Weiden continues to trial, , it is unlikely that the status quo will change in the next eight to 12 months[147] whilst the parties undergo compulsory pre-trial steps, including discovery, interrogatories, issuing of subpoenas and attending mediation. However, if anything changed during that period, a further application for a temporary stay, supported by evidence, could be made by Weiden.
[147]Current estimate for a trial date is 8-12 months from now.

When the matter comes to trial, there is of course a possibility that during the running of the plaintiff’s case, presently unknown witnesses or further complainants may come forward. This is in part because a trial of this type is likely to attract at least some media attention, which may in itself draw out potential witnesses and complainants. Civil trials are dynamic and unpredictable; the totality of the evidence to be adduced cannot be known at this time, and witnesses sometimes do emerge in the running of a trial. However, it would only be if such developments occurred that the prospect of the police changing their current position would arise, which would then clearly justify a fresh stay application.

If no new witnesses or complainants emerge in the course of the plaintiff’s case, I am satisfied Weiden could give evidence in defence of his claim, in the absence of a ‘real possibility’ of criminal prosecution. Although it can be expected that Weiden would face rigorous cross-examination, he is likely to do so under the cover of a s 128 certificate. Whilst the risk of him saying something incriminating (not covered by a s 128 certificate) cannot be excluded, in the absence of additional witnesses, I consider it is most unlikely anything said by Weiden in his evidence (save for an outright admission, which as the associate justice observed is in itself unlikely) would cause the police to pursue extradition.

It will be for the finder of fact in the civil proceeding to determine if the allegations are made out to the relevant standard.[148] Even if YZ is ultimately successful in his damages claim, and as occurred in Lucciano, the police subsequently review the transcript of the civil proceedings, consistent with what has been discussed above, without additional witnesses or complainants, initiation of an extradition process appears improbable. It is also many steps from now. Therefore, on this basis, there is presently no real risk to Weiden in allowing YZ’s claim to proceed until such time that circumstances change and the prospect of extradition and prosecution is genuinely on the cards.
[148]In accordance with the principles in Briginshaw v Briginshaw(1938) 60 CLR 336, 361–2.

In determining this appeal, I am mindful that the privilege against self-incrimination is a basic and substantive common law right.[149] If Weiden is convicted of offences arising from YZ’s allegations, he would almost certainly suffer a loss of his personal liberty, with the potential for him to face a lengthy term of imprisonment. However at this stage, for the reasons expressed above, whilst Weiden remains outside of the jurisdiction the risk to him of criminal prosecution remains a farfetched possibility.
[149]Reid v Howard (No 2) (1995) 184 CLR 1 at 11.

In considering this application it is also important to acknowledge YZ’s prima facie right to have his claim heard and determined in a timely manner. YZ claims that within six months of the abuse ceasing, he started to smoke marijuana, drink alcohol and was getting into trouble with the police. He claims that, as a result of the abuse, he developed drug and alcohol issues from the age of 15, and suffers a severe psychiatric and/or psychological injury. In respect of these injuries, YZ claims damages for his pain and suffering, loss of earnings, loss of earning capacity, past and future medical and like expenses, together with exemplary and aggravated damages. If he is successful in his claim, I consider the quantum of damages has the potential to be significant.

On the evidence before me, the current warrants of apprehension are unable to be executed solely due to Weiden not being in Australia. It would not be in the interests of justice to allow Weiden to use his absence from the jurisdiction to deny YZ his right to a hearing. These unique circumstances may well be the type of ‘dominant contradictory consideration[s]’ contemplated in Crespin.[150]
[150]Crespin (n 106) [26].

For these reasons, Weiden has failed to satisfy me that it is in the interests of justice to grant him a temporary stay at this time. Having so ruled, this does not preclude another application being made, should circumstances change.

I will hear from the parties as to orders sought to give effect to my reasons.

[2023] VSC 222

2 May 2023