Abuse Law – Stay of Proceedings Case Law Update – Stewart v Ma [2023] NSWSC 1046

Stewart v Ma [2023] NSWSC 1046  

As we all may know, permanent stay of proceedings of historical abuse claims is a very live topic in this area of law currently, and it is important that both survivors and practitioners are kept up to date on the Courts decisions and commentary in these application hearings.

In this matter, the plaintiff (Sandra Joy Stewart) commenced proceedings on 2 September 2021 against the defendant (Jianhua Ma) in which she sought damages in relation to her father (Ross Henry Stewart) (now deceased) regularly sexually abused her between 1964 and 1977 when the plaintiff was aged between 4 and 17 years old. The defendant executor (the plaintiff’s stepmother) filed a Defence in which she stated that she does not know and cannot admit that the plaintiff and the father were the victim and perpetrator respectively of sexual assaults which would regularly occur in the family home at Dee Why, or else in the backseat of the deceased father’s motor vehicle.

On 3 June 2022, the defendant filed an application seeking a permanent stay of the plaintiff’s proceedings. The defendant submitted that (at [59] to [64]):

• … she is the defendant in the proceedings by reason only of being the executor of her deceased husband’s Estate. She draws attention to the fact that the Estate, including the value of the apartment in which she lives, has assets of about $1.5 million. In the course of the hearing of this application, it was plain that if successful, the plaintiff would wish to recover damages in a sum equal to or greater than the value of the entire Estate. She submits that this is one feature of the prejudice which she faces by having to defend the common law claim. 
• … the grant of a permanent stay is the only appropriate way to ameliorate the manifest unfairness to the Estate of meeting the allegations of sexual abuse at a trial of the common law claim. She notes that the events occurred between 47 and 58 years ago; that the only direct evidence in support of the allegations are the statements of the plaintiff; and that the only person who can directly rebut the allegations, namely her late husband, is dead. She submits that at no time prior to his death was her late husband confronted with the allegations and, accordingly, not only she, but he also, have not been able to refute them. She submits that as she was only on notice of the allegations after her husband’s death, she could not make any enquiry of him. She also notes that the only possible contemporaneous witness (of, at least, the surrounding circumstances of the alleged abuse), namely, the plaintiff’s mother, has been dead for 20 years. 
• … this is not a case in which any possible enquiries which she might make could ameliorate the manifest prejudice occasioned by (i) the lapse of time since the events in question occurred, (ii) the death of her husband without his being confronted by the allegations, and (iii) her inability to give any instructions to her lawyers to contest the proceedings. 
• … this is not a case in which any allegation of vicarious liability is raised. Rather, the claim against the Estate arises directly as a consequence of the deceased being alleged to be the perpetrator, with the consequences that damages would be payable. The defendant submits that this means, differently from claims against an institution for historical sexual abuse, that the only way in which this matter can be approached is for the evidence of the alleged perpetrator to be available. It is not. 
• … as the common law claim is different from the Estate claim, and that there is no necessary inconsistency between the grant of a permanent stay of these proceedings where the Court is required to make a determination about the facts of the alleged sexual abuse, and the Estate claim where the fact of the sexual abuse if proved is a discretionary component of the assessment of the plaintiff’s entitlement to a greater share of the Estate than provided for by the deceased’s Will. Accordingly, the defendant says that the prejudice to the plaintiff which exists through the grant of a permanent stay is much diminished.