To Each Their Own: Recent High Court of Australia Decisions Overturning Permanent Stays

On 13 November 2024, the High Court of Australia delivered judgments in the matters of Willmot v Queensland [2024] HCA 42 and RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43 which reaffirmed a “new world” where lack of evidence in child abuse claims is to be expected, and permanent stays will only be granted in exceptional cases.

Willmot v Queensland [2024] HCA 42

The Claim

In 2020, Ms Willmot commenced proceedings in the Supreme Court of Queensland against the State of Queensland (the State) seeking damages for child sexual abuse and serious physical abuse as follows:

1. physical and sexual abuse perpetuated by her foster parents, Mr and Mrs Demlin, from 1957 to 1959;
2. physical abuse perpetuated by the supervisor of the Cherbourg Girls’ Dormitory between 1959 and 1966;
3. sexual abuse perpetuated by her uncle ‘NW’ during a visit to her grandmother’s residence in 1960; and
4. sexual abuse perpetuated by her Uncle Pickering during a visit to her grandmother’s residence in 1967.

At first instance, the State did not admit breach on the basis that it could not ascertain the veracity of the allegations of abuse. Accordingly, it sought orders to permanently stay the proceedings on the grounds that a fair trial was not possible in such circumstances where there is a substantial lapse of time and lack of evidence. 

The primary Judge held that the case was a part of the “exceptional category where a permanent stay is warranted” [167] and granted a permanent stay. 

Ms Wilmot appealed the stay, which was dismissed by the Court of Appeal. 

She was subsequently granted special leave to appeal to the High Court of Australia.

The Decision 

The High Court of Australia, by majority, ruled that the claim regarding sexual abuse by Ms Wilmot’s foster father would not be stayed, while the claim related to physical abuse by the foster parents was permanently stayed. 

The Court also unanimously determined that the allegations of physical abuse at the dormitory and those concerning NW would not be stayed, but the allegations of sexual abuse by Pickering were to be permanently stayed.

In coming to its decision, the High Court reaffirmed that:

• impoverishment of evidence (documentary, corroborating or otherwise) is now to be encountered and expected in cases which would have been statute barred (such as claims arising from child sexual abuse) and the courts will need to deal with that impoverishment.
• in dealing with the impoverishment of evidence, the mere passing of time, in and of itself, does not enliven the power to stay proceedings for abuse of process. 
• the lapse of time must be shown to have a burdensome effect which is so serious that a fair trial is not possible. 

In overturning the permanent stay (partially), the High Court considered that there were no exceptional circumstances borne by the State in responding to part of Ms Wilmot’s claim. The death of alleged perpetrators or key witnesses, along with the absence of contemporaneous records, do not, in and of themselves, establish that allegations cannot be fairly tried. The High Court noted that courts have, in such circumstances, adopted a cautious approach, recognising that it is “necessary to establish as reasonably clear a case as the facts will admit of to guard against the danger of false claims being brought against a person who is dead, and thus is not able to come forward and give an account for himself” [29]. 

Further, the High Court also noted that there are various principles and techniques that courts can deploy in cases where evidentiary imbalances arise including:  

1. courts recognise that the degree of satisfaction required under the civil standard of proof may vary according to the gravity of the fact to be proved. 
2. all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. 
3. a court is not bound to accept uncontradicted evidence and the facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied. 
4. courts are mindful that ordinary human experience exposes that human memory is fallible. 
5. where a claim is based upon an interaction with a deceased person (or involving a deceased estate) the court will scrutinise the evidence very carefully. 

However, in circumstances where the allegations are so vague that they are incapable of meaningful response, defence or contradiction, or where the Defendants’ participation in responding to allegations were limited to cross-examination of the Plaintiff in the absence of any other evidence, a fair trial would not be possible, and the High Court considered permanent stay to be appropriate.  

RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43

The Claim 

In 2018, RC initiated proceedings in the District Court of Western Australia against The Salvation Army (Western Australia) Property Trust (the Salvation Army). RC alleged that he had been sexually abused by Lieutenant Frank Swift, while residing at the Nedlands Boys’ Home, which was owned and operated by the Salvation Army, between 1959 and 1960. The alleged perpetrator, Lieutenant Frank Swift (Swift), was an officer of the Salvation Army. 

The Salvation Army filed an application seeking orders to permanently stay the proceedings on the basis that Swift and other key witnesses were deceased which deprived them of the ability to confront witnesses and there was a lack of relevant documentary evidence. 

The primary Judge granted a permanent stay in 2021. 

RC appealed the stay to the Court of Appeal however, the appeal was dismissed. 

RC was later granted special leave to appeal to the High Court of Australia. 

The Decision 

The High Court of Australia, by majority, allowed RC’s appeal and overturned the permanent stay of the proceedings. 

The majority concluded that the primary judge and appellate court erred in finding that a fair trial was not possible given that the death of the alleged perpetrator and other witnesses result in the Salvation Army losing the possibility of “no more than a bare denial” by the alleged offender and others. 

In addition, the majority considered that the Salvation Army did not make sufficient efforts to contact other witnesses that were alive during their investigations.  

Indeed, the mere inability of the Salvation Army to uncover a clear pathway for successfully challenging RC's evidence did not render the trial unfair and as a result it failed to show that a trial of RC’s allegations would be unfair. 

Implications 

The burden of proving that a permanent stay should be granted rests upon the applicant. Relevantly, in fulfilling this burden, the respondent is not required to prove prejudice by detailing every specific step that would have been taken if the claim had been brought sooner. Nor must the respondent demonstrate what information could have been obtained from a source that has been lost due to the passage of time.

While these principles may not come as a surprise, these decisions emphasise that respondents to a permanent stay application must be able to show how and why any claimed prejudicial circumstances would impede answering a case against it such that the trial of a particular claim will be necessarily unfair. Applicants must also be acutely aware of the substantial burden they bear in discharging this onus.