YZ v Beit Habonim Pty Ltd [2023] VSC 222

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 2 May 2023, the Supreme Court of Victoria provided a decision in the matter of YZ v Beit Habonim Pty Ltd [2023] VSC 222. In summary, the plaintiff commenced court proceedings on 21 November 2019 for alleged sexual abuse suffered by the plaintiff when he was a member of the youth organisation, Ichud Habonim Zionist Youth Movement, by youth group leader, Alan Weiden, (the second defendant) between 1974 and 1975. The plaintiff alleges that Ichud Habonim Zionist Youth Movement was operated by Beit Habonim (the first defendant). The plaintiff sought damages for breaches of common law and statutory duties by the first defendant, and for intentional tort on the part of the second defendant in which the plaintiff claimed that the first defendant was vicariously liable.  

The second defendant admits that he was a youth group leader during 1974 and 1975 but denies the allegations of sexual abuse. The first defendant does not admit that the plaintiff was a member of the youth group and denies that the second defendant was acting as its servant or agent in his role as a youth group leader.  

The plaintiff first reported the abuse by the second defendant to the police on 4 December 2015. The plaintiff went on to make a further three statements to the police, the last being on 18 July 2018. On 25 October 2018, the police made a final decision not to approve the second defendant’s extradition from Israel and to, instead, issue warrants of apprehension to be executed in the event that the second defendant returned to Australia.  

Application for a permanent stay

On 17 May 2022, the second defendant filed an application to permanently stay the plaintiff’s proceeding on the basis that there are significant inconsistencies in the plaintiff’s allegations that could not be investigated due to the passage of almost 50 years. In the alternative, the second defendant also sought a temporary permanent stay of the plaintiff’s proceedings until there was no longer a real risk that he would face criminal prosecution regarding the alleged sexual abuse of the plaintiff. The first defendant did not seek to be heard on the permanent stay application, however, submitted that if a permanent stay was to be granted it should apply to the whole of the proceedings.  

On 7 June 2022, the associate justice rejected the second defendant’s application for the plaintiff’s proceeding to be permanently stayed, ruling that exceptional circumstances justifying a permanent stay had not been demonstrated. His Honour also rejected the second defendant’s application for a temporary permanent stay of the plaintiff’s proceedings on the basis that the second defendant did not face a real risk of facing criminal prosecution in relation to the alleged sexual abuse.  

Appeal 

On 29 July 2022, the second defendant filed a notice of appeal and submitted that the associate justice’s refusal to permanently stay the plaintiff’s proceedings was in error on the following grounds: 

          1. erred by finding that allowing the proceeding to continue would be neither manifestly unfair to the second defendant nor bring the administration of justice into disrepute; 

          2. erred by taking into account the following irrelevant considerations: 

                    a. whether the plaintiff’s account of the alleged abuse was plainly unbelievable; 

                    b. whether the second defendant had given evidence of his activities and movements at the time of the alleged abuse; 

          3. erred by finding that the plaintiff had been consistent in identifying the nature of the alleged abuse; 

          4. erred by failing to find that the plaintiff’s allegations were vague, unreliable and could not be acted upon safely; and 

          5. erred by finding that expert evidence was required to determine the extent to which the second defendant was prejudiced by the loss of medical records. 

Further, the second defendant submitted that the associate justice’s refusal to temporarily permanently stay the plaintiff’s proceedings was in error on the following grounds: 

          1. erred by failing to find that the second defendant’s participation in the proceeding created a real risk of prejudice in his future criminal proceedings; 

          2. erred by finding there was no real risk that the second defendant would face criminal prosecution; 

          3. erred by finding that it was unlikely that any evidence given by the second defendant in the proceeding would be self-incriminating; 

          4. erred by failing to take into account that the second defendant could not fairly defend the proceeding without giving evidence, as the only other direct evidence of the alleged abuse was that of plaintiff; and 

          5. erred by taking into account an irrelevant consideration, namely, whether the second defendant intended to give evidence in the proceeding. 

The first defendant did not seek to be heard on the appeal hearing, however, submitted, again, that if a permanent stay was to be granted it should apply to the whole of the proceedings.  

In response the second defendant’s appeal regarding the permanent stay of the plaintiff’s proceedings, the Court provided the following: 

The reference by the associate justice to YZ’s complaints being ‘not plainly unbelievable’ was merely his assessment of YZ’s account regarding the timing of the home allegations.  In reading the associate justice’s reasons as a whole, it is patently apparent that this was just one of many considerations that his Honour had regard to.  I reject Weiden’s submission that the use of this phrase indicated that the associate justice set the bar too high and applied the wrong test.  If YZ’s allegations or explanations of alleged inconsistencies were plainly unbelievable, that would have been a factor relevant to a finding that continuation of the proceedings would have brought the administration of justice into disrepute.  For those reasons, this assessment by the associate justice was not an irrelevant consideration, and there was no error by him in making such an observation.  Therefore, ground…must fail. [75] 

Indeed, the associate justice expressly acknowledged that ‘given the passage of time, it is impossible to know what evidence has been lost or what evidence may have been given by any particular witness’.[82]  This comment is not inconsistent with the associate justice’s observation that there was no evidence put forward by Weiden as to the surrounding circumstances.  Further, this consideration was not determinative of the application, and instead, it must be seen as one of the many factors his Honour considered in his determination of the permanent stay application.  Therefore, ground…must also fail. [78] 

I am satisfied the associate justice was correct to hold that the presence of some inconsistencies in YZ’s account should not be determinative of the application.  Instead, his Honour considered such inconsistencies in the context of the otherwise consistent complaints made by YZ in respect of the identification of Weiden, and the location and nature of the abuse.  I am satisfied that this too was the correct approach – his Honour expressly considered whether, in all the circumstances, maintaining the proceedings would be manifestly unfair to Weiden or would otherwise bring the administration of justice into disrepute.  There was no error by the associate justice in this respect, and for those reasons, the ground…must fail. [80] 

The same can be said in relation to Weiden’s complaint that the associate justice erred in failing to find that YZ’s allegations were vague, unreliable, and could not be acted upon safely.  I do not consider this to be a fair categorisation of the multiple allegations made by YZ.  As noted above, those inconsistencies may be tested under cross-examination.  Until such time, I am not satisfied that the allegations can be fairly described as vague and unreliable, such that they cannot be acted upon safely.  Ground…also fails. [81] 

I consider Weiden’s submissions in respect of the associate justice’s comment that there was no evidence as to the impact of the prejudice arising from the loss of the medical records, to be misconceived. This was not a standalone consideration by the associate justice, but rather, a factor which was part of his Honour’s overall evaluation of the circumstances pertaining to the proceedings, and whether a permanent stay should be granted. [83] 

As was noted in Connellan, reasonable minds might differ as to whether it is ‘unjustifiably burdensome’ to allow a proceeding involving a substantial elapse of time to continue.[91] The fact that on appeal the court might take a different view than the lower court is not a basis for overturning the primary judge’s decision.[92]  Rather, on appeal, the court should only interfere if discretionary error is demonstrated or if the court is satisfied that the continuance of the proceedings would be an abuse of process.[93]  For all of the reasons outlined above, I am not persuaded that the associate justice erred in refusing to grant a permanent stay of the proceeding. [92] 

In response the second defendant’s appeal regarding the temporary permanent stay of the plaintiff’s proceedings, the Court provided the following: 

Ultimately, I agree with the associate justice’s decision not to grant a temporary stay of the proceeding.  However, in my view, the conclusion reached by the associate justice that there was no indication that Weiden intends to give evidence in the civil proceeding was glaringly improbable and constituted an error of fact. [138] 

At hearing, the parties agreed that it was unlikely that Weiden would, of his own volition, return to Australia.  The practical effect of a grant of a temporary stay at this time would therefore mean YZ’s ability to pursue his civil claim would be in the hands of Weiden or the police.  Unless Weiden decides to voluntarily come to Australia, or the police re-consider its decision in respect of Weiden’s extradition, it is probable the grant of a temporary stay will apply indefinitely. [144] 

In my view, there is not sufficient evidence to presently conclude that it is on the cards that Weiden will face criminal prosecution.  Given the agreement as between the parties that Weiden will not voluntarily come to Australia, and, at present, the police have decided not to pursue Weiden’s extradition, it will only be if circumstances change so as to cause the police to reconsider the decision (to extradite Weiden) that it could be said that prosecution of him is on the cards. [145] 

In determining this appeal, I am mindful that the privilege against self-incrimination is a basic and substantive common law right. If Weiden is convicted of offences arising from YZ’s allegations, he would almost certainly suffer a loss of his personal liberty, with the potential for him to face a lengthy term of imprisonment. However at this stage, for the reasons expressed above, whilst Weiden remains outside of the jurisdiction the risk to him of criminal prosecution remains a farfetched possibility. [151] 

Ultimately, the Court determined at [12] that:  

          a. there was no error by the associate judge in respect of his refusal to grant a permanent stay of the plaintiff’s proceedings; and 

          b. whilst I am persuaded the associate justice erred in part of his reasoning in respect of his refusal to grant a temporary stay, when considering this application afresh, I have reached the same conclusion. That is, it is not in the interests of justice to grant a temporary stay of the proceeding as I am not persuaded that a criminal prosecution against Weiden is presently ‘on the cards’.  

Some noteworthy commentary made by the Court at [90] and [91]:  

          It is relevant to note that a fair trial is not synonymous with a perfect trial. Whether a trial is so manifestly unfair depends on all the circumstances of the case.  

          Unlike the proceedings in Connellan, Grant and Morton, this is not a case where the trial would proceed with ‘mere scraps of evidence’. Given the details of abuse contained in YZ’s multiple statements, witness statements, photographic material, and the apparent preservation of the relevant locations of the abuse (save for the car), it was open to the associate justice to conclude that, notwithstanding that almost 48 years have passed since the alleged abuse occurred, Weiden failed to discharge the heavy onus required of him in seeking the permanent stay.  

          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. 

Like? Share it with your friends.