In response to Grounds 1-3, the Court provided at  to :
In developing the argument in favour of these grounds, the submissions for Ms Willmot take up the factor which the learned primary judge identified as the one that placed the proceeding in the category of cases that warrant a permanent stay. That factor is the absence of means whereby the State could investigate the foundational facts underlying the alleged wrongful acts, arising from its inability to obtain instructions from the Demlins, Maude Phillips or Uncle Pickering. Furthermore, her Honour noted that those allegations were never put to those individuals while they were alive; that there is, therefore, no record of any response from them; and that there are no documents bearing upon the abuse allegations which could overcome that.
The submissions then propose that at least four categories of case involving allegations of sexual abuse exist where a permanent stay might be considered. The present case is within the fourth category, namely, a civil claim for damages based on direct negligence alone where an institution is the defendant. In such a case, it is submitted, proof of the allegation of abuse is “just one of a number of factual issues” that a plaintiff must prove in order to succeed in proving causation and damage. It is further submitted that because, in this case, there is no allegation of vicarious liability on the part of the State, evidence from the Demlins, Phillips and Uncle Pickering would “form only a component part of” Ms Willmot’s case. These submissions culminate in a proposition that the learned primary judge erred in treating the absence of these “foundational witnesses” as being determinative.
I am disinclined to accept those submissions insofar as they contend that the identity of the individual or institution whom it is sought to make legally liable for damages for child sexual or other physical abuse determines whether or not proof of an allegation of the same is critical to the claimant’s case. That is not so. If damages are sought for abuse of that kind, then proof that it occurred is indispensable to success whether or not the individual who committed it is a party to the proceeding.
Furthermore, the ultimate proposition is apt to misstate what the learned primary judge did. Her Honour did not rely on the absence of “foundational witnesses” of itself as categorising the case as exceptional. It was to “foundational allegations” and “factual facts” to which her observations were addressed. In her Honour’s analysis, what was relevant for categorisation was the State’s inability to respond in a trial to such allegations because it had no means for investigating such facts. It could not now obtain instructions and, if necessary, call evidence from those key witnesses. Nor had the then-unmade allegations been put to them while they were alive and their responses recorded.
In oral submissions, it was argued for Ms Willmot that it was unrealistic to assume that persons against whom allegations of sexual or other physical abuse are made, would facilitate the investigation of underlying facts. They might invoke a right to silence or privilege against self-incrimination and not participate in any investigation. Furthermore, they might decline to testify or, if they did, their answers to questions might be so tailored by the exercise of judicial discretions as not to add anything of substance to the evidence.
It may be accepted that in a particular instance, an individual against whom such allegations are made might invoke such a right or privilege, decline to testify, or fail to add to the substance of the evidence. However, that does not, in my view, warrant an assumption that such is likely to occur. Nor does it justify a moderation of the significance of the State’s inability to investigate foundational facts in the exercise of the discretion.
An allied criticism made orally of paragraph 78 of the reasons for judgment is that it asserts an irrelevance, namely, that the State lacked the opportunity to confront the alleged perpetrators to obtain instructions for the purpose of defending the claim. That circumstance is irrelevant as a matter of principle, it is submitted, unless it can be seen that a defendant in that circumstance would be in a materially different position were the perpetrators alive. This criticism invites the court to engage in speculation as to what individual alleged perpetrators who are deceased persons might have done whether or not there is a sufficient evidentiary basis to speculate reliably in that regard. I would reject the criticism on that account. Furthermore, insofar as it implies that there is some onus on a defendant to prove such a material difference, it is unsupported by authority.
The Court further provided at  to :
I now turn to a submission made on behalf of Ms Willmot to the effect that there is sufficient useful evidence available now on which to conduct a trial. In regard to the alleged sexual and other physical abuse by the Demlins, reference is made to direct evidence from Ms Willmot and also evidence of RS who describes repeated sexual offending by Jack Demlin against her during the two years that she lived with them from 1957 to 1959 and her observations of similar assaults by him inflicted on her younger sister CS and on Ms Willmot. As to Maude Phillips’ alleged offending, the submissions refer to the evidence of Ms Willmot, the received evidence of Ms Nielsen, Ms Watson and Ms Collins, and to the correspondence in 1951.
This is evidence that would be called in the plaintiff’s case. It might well assist Ms Willmot to establish her claim. However, the availability of it to her does not assure a fair trial to both parties. It does not repair the State’s inability to investigate or obtain instructions, lead evidence or cross-examine about the foundational allegations.
For these reasons, I am unpersuaded that Ms Willmot has, by these grounds of appeal, established error on the part of the learned primary judge. Her Honour correctly identified, by reference to applicable authority, that the unavailability of persons who could give instructions and/or evidence about critical aspects of liability can result in the “…practical inability of reaching a decision based on any real understanding of the facts, and the practical impossibility of giving the defendants any real opportunity to participate in the hearing, to contest them or, if it should be right to do so, to admit liability on an informed basis.”