Published: 26 March 2020
Author: Penny Savidis
Should I stay or should I go (to court) now? NSW stay case a win for survivors of abuse
Around Australia, a suite of legal reforms has made it easier for abuse survivors to take their matters to court.
In Victoria, in July 2015, limitation periods for those who suffered child sexual, physical and related psychological abuse were removed, so there are now no time limits to take cases to court.
However, the court still has the power under section 27R of the Limitation of Actions Act 1958 (Vic) to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.
In 2017, the first known decision regarding section 27R was handed down in Victoria in the case of Connellan v Murphy  VSCA 116. In that case, the plaintiff, Ms Murphy, brought a claim against an individual defendant, Mr Connellan, alleging he raped her in 1968 when they were both minors and she stayed with his family for about 7-10 days after her father died. Mr Connellan sought to permanently stay proceedings, arguing they were an abuse of process and that he was irretrievably prejudiced by the delay. He also questioned the plaintiff’s reliability as a witness.
While the trial judge refused to grant the stay, her decision was overturned on appeal. In granting a permanent stay, The Court of Appeal found that given the alleged abuse occurred almost 50 years ago, it would be a ‘burdensome and oppressive’ task to expect the defendant to defend himself, rendered more oppressive as neither side was in a position to make proper investigations of the relevant surrounding circumstances, and by the ‘vagueness of the plaintiff’s own recollection’.
The Appeal Court noted ‘…a trial of the plaintiff’s allegations would be one that proceeded on a very unsure footing with mere scraps of evidence, the reliability of which must seriously be doubted, being tendered and relied upon…’ The Court of Appeal also held the lapse of time would have a significant effect on those giving evidence. See https://www.lawyersalliance.com.au/opinion/connellan-v-murphy-2017-vsca-116
History of decisions
There have been a number of permanent stay decisions in the context of child abuse since this time, some that have also gone against plaintiffs. However, the recent NSW Court of Appeal decision of Gorman v McKnight  NSWCA 20 on 19 February 2020 demonstrates that the bar is set quite high for a defendant to obtain a permanent stay.
In Gorman, the Estate of the late Mr Judd sought to permanently stay or dismiss three sets of proceedings brought by the plaintiffs – McKnight, Channell and Gammage, alleging historical child sexual abuse between 25 and 40 years ago. Judd had been charged in 2015 regarding the offences and had died in 2016. Judd’s solicitor had conferred with him after he had been charged. There was also telephone surveillance of Judd prior to his death, in which he admitted knowing one of the plaintiffs was 14 years old at the time of the assault, but claimed the acts were consensual. Civil proceedings were filed by the plaintiffs after his death.
The primary judge (Garling J) held the Estate had failed to discharge the "heavy onus” it bore in seeking a permanent stay of proceedings, and found that hearing the underlying proceedings would not be "manifestly unfair” to the Estate. Garling J stated that "the mere absence of documentary evidence, or the absence of a witness through death or incapacity, does not have the automatic consequence that a trial would be unfair, or that a permanent stay should be granted”.
The Court of Appeal dismissed the Estate’s appeal, noting that permanent stays will only to be granted in the most exceptional circumstances, and the "heavy onus” the party applying for a permanent stay faces. The Court of Appeal noted the Estate could have made a number of inquiries about various matters and hadn’t, and that "the quality and extent of the enquiries made by the applicant for the permanent stay about matters which bore upon the fairness or unfairness of the proceedings were appropriately characterised by the primary judge as "perfunctory”.
While the Court of Appeal found that each case seeking a permanent stay turns on its own facts, the Gorman decision highlights that detailed evidence needs to be assembled in support of permanent stay applications to be successful, and that a stay will not be easily granted.
Institutional cases more likely to proceed
The above cases were also not cases of institutional abuse, where an institution – such as a church, school or government – was involved in proceedings.
In such cases, there is usually much more documentary evidence, for example regarding the employment of the alleged abuser, or the processes the institution was meant to follow in the event of complaints of abuse. In an institutional context, it is likely that it would be harder to argue that a fair trial would not be possible, even where witnesses are dead or unavailable and some evidence has been lost, especially where an institution is on notice of abuse by serial offenders and has made enquiries about the abuse and assembled significant documentary evidence over the years.