As we all may know, permanent stay of proceedings of historical abuse claims is currently a live topic in this area of law, and it is important that both survivors and practitioners are kept up to date on the Courts decisions and commentary in these application hearings.
On 16 May 2023, the Queensland Court of Appeal provided a decision in the matter of Willmot v State of Queensland [2023] QCA 102. In this matter, the plaintiff (Joanne Edith Willmot) filed an appeal of the primary judge’s decision to grant the defendant’s (the State of Queensland) application seeking a permanent stay of the plaintiff’s proceedings.
In summary, the plaintiff commenced court proceedings on 11 June 2020 against the defendant for alleged abuse suffered by the plaintiff when she was a resident of the Cherbourg Girl’s Dormitory and whilst in foster care with the Demlin family all between 1957 and 1960. The plaintiff sought damages for breaches of common law and statutory duties by the defendant, and for intentional tort on the part of the perpetrator in which the plaintiff claimed that the defendant was vicariously liable.
On 14 December 2021, the defendant filed an application to permanently stay the plaintiff’s proceeding and on 22 July 2022, the Court made an order permanently staying the plaintiff’s proceeding.
The plaintiff filed a notice of appeal on 19 September 2022. The plaintiff submitted that the primary judge was in error on the following grounds:
In response the plaintiff’s appeal, the Court of Appeal found:
In response to Grounds 1-3, the Court provided at [58] to [64]:
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 [67] to [69]:
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.”
In response to Ground 4, the Court provided at [73]:
The learned primary judge did provide a rationale for granting the stay notwithstanding the lack of enquiry by the State as to, in the first place, instructions that could be obtained from NW with regard to the foundational allegations against him. That line of reasoning is the subject of challenge in Ground 5. It is convenient to turn to that ground now. If the challenge fails, then the approach to a permanent stay urged by the written submissions to which I have referred, cannot prevail.
In response to Ground 5, the Court provided at [75] to [79]:
The ground contends that a finding by her Honour to that effect is against the evidence and the weight of evidence. However, the written submissions advance a different contention. It is that it was a matter for expert evidence. Neither expert briefed by the parties gave evidence which supported the proposition accepted by her Honour; nor were they cross-examined on it, it is submitted.
Contrary to this submission, there was expert evidence before the learned primary judge on this issue. Dr Milind Pant, a psychiatrist engaged by Ms Willmot’s solicitors, provided a report dated 20 May 2021. It is Dr Pant’s opinion that “[it] is difficult to disentangle the effects of the individual abuse incidents as they are so entwined”. Dr Pant said:
“Ms Willmot provides a complex history and it is difficult to disentangle the events with absolute precision. The sexual abuse perpetrated on her at the Demlins, the physical and emotional abuse perpetrated onto her at Cherbourg girls dormitory and the sexual abuse perpetrated onto her by her cousin and great uncle have all contributed to her condition… The other life stressor events that have happened in her life were after the periods of childhood abuse and would have contributed to her ongoing psychological symptoms but I am unable to estimate the extent that each individual life stressor would have had on her conditions”
In view of this evidence, I am unpersuaded that the proposition accepted by the learned primary judge was against the evidence or the weight of evidence. Clearly there was expert evidence before her Honour that supported the proposition.
I note that in oral submissions, reference was made to the shifting evidentiary onus explained by the High Court in Purkess v Crittenden. It was submitted that where the evidence indicates that a range of causes, for some, or one only, of which the defendant is legally liable, has contributed to a plaintiff’s condition, then the burden shifts to the defendant to adduce evidence that disentangles the respective contributions of the causes to the condition.
There is no reason to doubt the potential application of this rule as to evidentiary onus to this case. However, in my view, the insurmountable difficulty which the learned primary judge found would exist, ought not have any less relevance for present purposes on account of its having arisen in a factual context where the evidentiary onus as to causation has shifted to the State.
In response to Ground 6, the Court provided at [84]:
The availability of RS to give this evidence does not repair the significant disadvantage to the State arising from the unavailability to it of a contradictor with respect to the critical factual issue of whether Jack Demlin sexually assaulted Ms Willmot or not. Were RS to give the foreshadowed evidence, the State would be in a position of having to challenge it in cross-examination without the assistance of a contradictor or any other individual who could give relevant instructions, or of any relevant contemporaneous documentary evidence. As her Honour said, the State would be “cross-examining in the dark”. This serves to illustrate the significant forensic disadvantage that the State would face were RS to give evidence and the unfairness to it that would result.
In response to Ground 7, the Court provided at [86] to [87]:
This ground of appeal is reliant upon those that precede it. It contends that the exercise of the discretion to stay permanently by the learned primary judge miscarried in that her Honour did not take into account a relevant material consideration or mistook the facts as asserted in Grounds 1 to 6.
For the reasons given, I am not persuaded that the learned primary judge erred as alleged in those grounds. An error or errors which would vitiate the exercise of the discretion by her Honour has not been established, in my view.
Simply put, the Court of Appeal found that none of the plaintiff’s grounds of appeal succeeded and, as such, the Court of Appeal dismissed the plaintiff’s appeal. The Court of Appeal further ordered that the plaintiff pay the defendant’s costs associated with the appeal.
Further updates in relation to the stay of proceedings of historical abuse cases can be found in other articles on our website written by Emily Wright and our office.
We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today.
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