RC v The Salvation Army (Western Australia) Property Trust [2023] WASCA 29

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.  

On 17 February 2023, the Court provided a decision in the matter of RC v The Salvation Army (Western Australia) Property Trust [2023] WASCA 29. In this matter, the defendant (Salvation Army) filed an application seeking a permanent stay of the plaintiff’s (RC) proceedings.  

In summary, the plaintiff commenced court proceedings in 2018 against the defendant for alleged sexual abuse suffered by the plaintiff at Nedlands Boys’ Home at the hands of an officer of the defendant, Lieutenant Frank Swift, in 1959 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. In May 2021, the defendant filed an application to permanently stay the plaintiff’s proceeding on the grounds of abuse of process, submitting that:  

  1. The person to whom the abuse was said to have been reported to died in August 1968; and 
  2. The perpetrator died in October 2006.

On 1 December 2021, the Court ordered that the plaintiff’s proceeding be permanently stayed.  

This latest decision is in relation to:  

  1. The plaintiff seeking leave to appeal, and to appeal against the primary judge’s decision to permanently stay the proceeding. 
  2. The defendant cross-appealing wherein they are challenging the primary judge’s exercise of the discretion to make no order as to the costs of the application and the action. This cross-appeal also requires leave.  

The plaintiff submitted that the primary judge was in error when they decided: 

  1. that the perpetrator died before the defendant became aware of the allegations and, therefore, the defendant did not have an opportunity to investigate; 
  2. if the previous ground was not established, that if the defendant had earlier notice, it would have investigated; 
  3. that the defendant was otherwise prejudiced through the loss of documents and the ability to call witnesses; and 
  4. not to consider evidence given to a Royal Commission by a senior officer of the defendant. 

In response the plaintiff’s appeal, the Court of Appeal found (adopting the above numbering): 

  1. Dismissed on the basis that it could not be said that the primary judge erred in finding that the defendant first became aware of the allegations until such time that the perpetrator had died;
  2. Dismissed on the basis that this ground was not raised with the Primary Court;
  3. Dismissed on the basis that whilst there were still living witnesses who could give evidence as to abuse at Nedlands Boys’ Home, this would only be of a general nature and not specifically in relation to the plaintiff’s allegations. Due to the death of, or inability to locate, officers/staff of Nedlands Boys’ Home at the time of the alleged abuse, and in circumstances where a considerable period of time has lapsed, a fair trial could not be conducted; and
  4. Dismissed on the basis that “Any admission that this statement incorporates is of such a general nature that it does not, in our view, overcome the deficit of information facing the respondent with respect to the particular situation at the Home in 1959 and 1960” at [178]. 

In response to the defendant’s cross-appeal, the Court found at [214] – [215]: 

[214] …it was wrong to apply the considerations going to the reasonableness of and the public interest in the appellant commencing the action to the question of the costs of the stay application.  In all the circumstances the primary judge’s decision to deprive the respondent of a favourable costs order – by making no order as to the costs of the stay application – was unreasonable or plainly unjust.  The ground of cross-appeal should be allowed to this extent. 

[215] To not disturb the order as to costs on the stay application would, in our view, work a substantial injustice on the respondent.  We grant leave to cross-appeal against the costs order insofar as it relates to the application for the stay, allow the cross-appeal to that extent, and order that the appellant is to pay the respondent’s costs of the application for the stay, on a party/party basis. 

Simply put, the Court granted the plaintiff leave to appeal, however, the plaintiff’s appeal was then dismissed. The Court granted the defendant leave to cross-appeal against the costs order insofar as it related to the application for the permanent stay, and ordered that the plaintiff pay the defendant’s costs of the permanent stay application on a party/party basis. 

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.