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Mr Smith sought leave to appeal against an earlier successful application made by the defendant for a permanent stay application against Mr Smith’s proceedings seeking damages for sexual abuse allegedly perpetrated in 1981 when Mr Smith was in year 6. The alleged perpetrator, Rev Sandars, died in 2012 and the alleged abuse was disclosed to the Headmaster of the school in 2017.
There was no suggestion that there were any direct witnesses to the abuse. Mr Smith contended sufficient evidence existed which, if accepted, would likely result in his case most likely failing, thereby arguing a fair trial was possible.
Key witnesses were deceased or unable to be located, including the headmasters who appointed Rev Sandars and who held office during the relevant period, a PE teacher who might have provided evidence of what he saw at a swimming pool, Mr Smith’s year 6 teacher and secretaries of Rev Sandars from the relevant period of time. There was an absence of documents or contemporaneous evidence dealing with the allegations, however, there were witnesses who gave evidence to the effect that they never suspected Rev Sandars of any sexual misconduct with students. The school relied on extensive efforts undertaken to find testimonial and documentary evidence relating to Mr Smith’s claim.
The court made note of the measure of public importance attaching to cases such as these in light of the seriousness of the allegations. It also considered the 2019 case of The Council of Trinity Grammar School v Anderson  NSWCA 292 involving the same school but a different alleged perpetrator, in which the court granted a permanent stay turning on the unavailability of Rev Sandars who was in that case a key witness as to whether the alleged sexual abuse took place. The court also considered The Trustees of Catholic Diocese of Lismore v GLJ  NSWCA 78 and ultimately refused leave to appeal, upholding the primary judge’s decision to permanently stay the case.
In GMB v Uniting Care West  WASCA 92, the Supreme Court of Western Australia upheld a permanent stay relating to alleged physical and sexual abuse taking place at a residential care facility in the late 1950s. Despite complaints of abuse (by other complainants) had been raised against the alleged perpetrator during her lifetime, the Court held that it was not obvious that the defendant should have undertaken extensive investigations into all former residents to uncover potential victims of sexual abuse. In this particular case, the plaintiff was born in 1953 and first disclosed the abuse in a statement to the Royal Commission in 2017, five years after the alleged perpetrator died.
In Phillips v Stanzer  VSC 355, the Victorian Supreme Court granted a permanent stay in relation to allegations of sexual abuse brought by two sisters against their deceased uncle’s estate. In the two years prior to the uncle’s death, police had commenced an investigation into the alleged abuse and were on the verge of bringing formal charges against the uncle. Although the sisters had a strong case against their uncle, the Court held that this was not determinative as to whether the case would be patently unfair.
Of note, 12 months prior to the uncle’s death the police had recorded a phone call between the uncle and the two sisters in which the allegations were put to the uncle. However, given the uncle’s ill health and declining mental state at the time of the phone call, the Court held that his response to the allegations was to be approached with caution.
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, please reach out to the author, Emily Wright, and Littles Lawyers today.