MTH v State of New South Wales [2023] NSWSC 1124

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 (MTH, a pseudonym) commenced proceedings on 16 April 2020 against the defendants (the State of New South Wales (first defendant), Mr Geoffrey Croft (second defendant), and Mrs Sandra Croft (third defendant)) in which she sought damages in relation to her foster carer (Mr Geoffrey Croft) regularly sexually abusing her whilst she was a child and a ward of the State of New South Wales between approximately 1978 and 1980.  

Following a complaint made by the plaintiff to the NSW Police in 2012, Mr Croft was prosecuted in the criminal courts for his conduct with respect to the plaintiff and was convicted on two counts. Mr Croft was sentence to a term of imprisonment. Mr Croft appealed the decision; however, the Court of Criminal Appeal dismissed his appeal. Mr Croft passed away before his application for special leave to appeal to the High Court was determined.  

Novel Duty of Care

In relation to the liability of Mrs Croft, it was pleaded by the plaintiff that, as Mrs Croft was the plaintiff’s carer, she owed the plaintiff a duty to take reasonable precautions to prevent the plaintiff from being exposed to a foreseeable risk of not insignificant harm. The plaintiff alleged that Mrs Croft knew or ought to have known that there was a risk that Mr Croft would engage in sexually degrading behaviour with the plaintiff because of his previous inappropriate conduct with children under his care and the care of Mrs Croft.  

Ultimately, the New South Wales Supreme Court held that the pleading was not obviously amenable to a summary dismissal.  

Permanent Stay Application

On 15 June 2023, the third defendant filed a Notice of Motion seeking a permanent stay of the plaintiff’s proceedings either pursuant to section 67 of the Civil Procedure Act 2005 or pursuant to the inherent jurisdiction of the Court. The third defendant submitted that (at [47]): 

  1. the impoverishment of evidence relating to the claim, including the quality of the evidence that may be given by the plaintiff, MTH;  
  2. the death of two critical witnesses, namely her husband Mr Croft, and Mr Brian McIlveen, an officer of the Department of Community Services; 
  3. the absence of other witnesses who might be able to give relevant factual evidence; 
  4. delay on the part of the plaintiff in commencing and maintaining the claim against her prior to the death of Mr Croft; and 
  5. the inability of the third defendant to be able to meaningfully participate in the proceedings and answer the claim. 

In response, the plaintiff submitted the following at [68]: 

  1. first, a defence has not yet been filed by Mrs Croft and as a consequence, at least by reference to the pleadings, the issues which are to be determined, and against which the existence of, and assessment of the extent of any prejudice is to be measured, are not defined; 
  2. secondly, Mrs Croft gives no evidence on the Motion about any of the factual matters covered in the various statements served by MTH in the course of these proceedings, or else, the sworn evidence given at the trial of the late Mr Croft by RS and PS, and MTH herself; and  
  3. finally, the evidence…demonstrates that by at least March 2014, Mrs Croft became aware of allegations which had been made involving both Mr Croft and her. She retained a solicitor with respect to those allegations, and no doubt, together with her husband gave him instructions about them. She has not waived privilege with respect to any of her communications with that solicitor. By reason of her choice to maintain privilege, the extent of her earliest response to the allegations, and her knowledge of the earliest response of Mr Croft to the allegations remains unrevealed. 

On 15 September 2023, the New South Wales Supreme Court through Garling J provided at [74], [75], [77], [82], and [84] as follows: 

          Mrs Croft is of full capacity and is able to give evidence in response to the allegations including all of the surrounding facts and circumstances. She is able to provide full and complete instructions to her lawyers with respect to the defence of the claim. There is no material before me which suggested that she is any way impaired in her memory of the events during the time of MTH’s residence with her and Mr Croft at Cleggswood. She was able to give a full, frank and complete account in evidence at the criminal trial of Mr Croft in 2019. Counsel for Mrs Croft did not make any submission by reference to any part of the transcript of the criminal trial that Mrs Croft demonstrated any inability to give appropriate evidence in answer to any question. On my examination of the transcript of Mrs Croft’s evidence at that trial, I could not see any question asked of Mrs Croft which she was unable to answer because of a lack of memory or any impairment of her cognition.  

          The impression I obtained when reading the transcript was of a person whose recall of events of the time, her knowledge of the character and behaviour of her husband, and any of the relevant surrounding circumstances, was clear and unequivocal. As well, her evidence at the criminal trial extended to contradicting the evidence of the twin boys, RS and PS, who gave evidence at the trial.  

          I accept that the death of Mr Croft means that any evidence which he is capable of giving directly about the assaults of which he is accused by MTH will not be available to Mrs Croft. However, I note that Mr Harris, his solicitor at the trial, is alive and maintains his file of the criminal proceedings. He is unwilling to make it available because he, entirely properly, asserts that the contents of it are privileged and that he has no instructions contrary to the maintenance of that privilege. So much may be accepted. Whether that position will change in the future if probate is granted of Mr Croft’s will cannot be known. Whether MTH or Mrs Croft could argue that the death of Mr Croft and the absence of any executor of his Estate, is sufficient for the Court to hold that the privilege is no longer maintained, again, is not a matter to be determined now for the purposes of this Motion.  

          Whilst Mrs Croft submitted that the absence of the availability of any evidence from Mr McIlveen by reason of his death was a significant prejudice to the conduct of her case, I am not so persuaded. The records of Mr McIlveen’s observations, opinions and statements of fact which he could give in evidence at a hearing are contained in the Departmental file – the contents of which would, I would expect in the ordinary course of a hearing, be admissible as business records by reason of s 69 of the Evidence Act. Again, whilst I accept that there may be some prejudice created by the absence of Mr McIlveen as a witness, because he cannot expand on the matters he has documented or discuss the character of Mr and Mrs Croft, in my assessment that prejudice is of a relatively low level because of the contemporaneously created records, and the availability of other witnesses capable of giving any tendency or good character evidence about Mr Croft. 

          I am also influenced in coming to my decision by the fact that Mrs Croft has available to call at any hearing, witnesses who were called during the criminal trial, namely foster children who lived at the Croft’s property, Cleggswood, who were able to give evidence touching upon the good character and the absence of any tendency to engage in sexual or physical assault or other forms of violence of Mr Croft, his behaviour towards them, and the way in which they were raised whilst staying with Mr and Mrs Croft. Significantly, as appears from the transcript of the criminal trial, this evidence describes the complete absence of any conduct of a kind which approaches the physical and sexual assaults alleged by the plaintiff or any other form of violence. 

Ultimately, the Court rejected the application for a permanent stay of the plaintiff’s proceedings despite the death of Mr Croft, providing at [81]: 

          …whilst there is an obvious prejudice from Mr Croft’s absence, I do not think that when viewed together with all of the other available evidence going to his conduct and the surrounding circumstances, including steps which can be taken to lead indirectly some of the evidence which he was capable of giving, prejudice with respect to the absence of Mr Croft as a witness is such as would make the trial of these proceedings an unfair one. 

The Court further ordered that the third defendant pay the plaintiff’s costs of the Notice of Motion.  

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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