The plaintiff commenced proceedings against the State of Queensland (the State) seeking damages for historical physical and sexual abuse allegedly suffered in State-run residential facilities some 60 years ago.
The abuse was allegedly perpetrated by older fellow residents and staff, all of whom were now deceased. The State denied liability and sought a permanent stay on the basis of prejudice and inability for there to be a fair trial.
Proceedings permanently stayed, plaintiff to pay defendant’s costs on the standard basis. Crowley J, decision delivered 19 October 2023.
Having considered a number of leading authorities, including Moubarak v Holt (2019) 100 NSWLR 218;  NSWCA 102 and Willmot v State of Queensland  QCA 102, Crowley J was satisfied that the State had discharged its onus in demonstrating that a permanent stay should be granted.
As the plaintiff had not previously notified the State of his allegations prior to serving his claim, the State had been unable to conduct any prior investigations or enquiries.
His Honour observed that there were no documents recording any instance of alleged sexual abuse of the plaintiff, all the alleged perpetrators of the alleged abuse were deceased, there were no nominated corroborating witnesses, and that the State had been wholly deprived of any opportunity to further investigate the alleged events and to obtain information and instructions to enable it to meaningfully respond to the plaintiff’s claim.
As a result, Crowley J noted that, in the circumstances, the State could not conduct a defence “by advancing any positive proposition that the alleged instances of sexual abuse did not actually occur”, and “(p)roof of the critical foundational allegations underpinning (the plaintiff’s) claim would be reduced to no more than a staged formality. The State would be unable to meaningfully participate in the trial in this critical aspect because of the impoverishment of the available evidence due to the passage of time.”
Crowley J did not accept the plaintiff’s evidence of other possible lines of enquiry and investigation answered the issue of unfairness to the State, as currently identified.
While the plaintiff argued that a permanent stay should not be ordered whilst further enquiries could be conducted, Crowley J found that this was not determinative of the application – it was simply for the applicant State to demonstrate that it has discharged its obligation to make all reasonable enquiries and, having done so, that such an exceptional remedy was warranted.
His Honour did not consider the further identified possible enquiries to be reasonable in the circumstances.
Crowley J also rejected a submission on behalf of the plaintiff that any stay should not be applied to all his alleged circumstances of abuse and that some allegations might be permitted to proceed to hearing; as the prejudice caused by the lapse of time pervaded all aspects of the plaintiff’s claim and the supporting medical evidence did not differentiate between the causes of his injuries.