Stays of proceedings are an unusual beast. They are rarely ordered and as the Court described in Moubarak v Holt [2019] NSWCA 102 (at [89]), “intensely fact specific.” However, in the context of historic abuse claims, they have become rather common among NSW Courts in recent times.
Given just how fact specific such applications tend to be, it is also difficult to find any bright lines among the various decisions of superior courts with which to benefit litigants and their advisors. However, a pattern has emerged in cases of this kind, starting with decisions such as Trinity Grammar v Anderson [2019] NSWCA 292 to the effect that if the alleged perpetrator had passed away before the Defendant has had a chance to speak to them about the allegations, the Court would be inclined to find that a fair trial (ss6A(6) of the Limitation Act 1969 (NSW)) could not be achieved and therefore a stay should be granted.
This position has started to take hold even when there might be other information the defendant could call upon or test to challenge the allegations of abuse the Plaintiff is making. Such was the case in Diocese of Lismore v GLJ [2022] NSWCA 78 where the first instance judge was satisfied such material meant a fair trial could be achieved, but the NSW Court of Appeal was not.
But a decision of Chen J in the recent Supreme Court of NSW case of Peters v Trustees of the Marist Bothers [2023] NSWSC 475 has turned the dial slightly in the opposite direction.
In 2015 the Defendant organisation had been made aware of another claim against the same alleged perpetrator as the person in Peters. At that time, it had also been told through lawyers that the alleged perpetrator was unwilling to speak with the Defendant at all about those allegations.
Then, in about October 2020, the Plaintiff’s solicitors in Peters put the Defendant on notice of the allegations made by their client. Proceedings were filed in 2021 and about a year later the alleged perpetrator passed away in about September 2022.
The Defendant, relying upon what had been communicated to them in 2015 in respect of the allegations made by the other claimant, had decided not to put the new allegations to the alleged perpetrator. Its solicitor said, somewhat justifiably it seems, he had formed the view that to do so would not assist. But this was a stay application with fatal consequences for the Plaintiff’s claim if granted and the Court was not persuaded. The gravamen of the decision in this regard is thus (at [65]):
“It is “clear that a party seeking the exceptional relief of a permanent stay must demonstrate that all reasonable enquiries which bear upon the fairness or unfairness of the proceedings have been undertaken”: Gorman at [94]. That is not this case. The defendant should not, in my view, have the benefit of its own inaction: the defendant’s alleged inability to meaningfully deal with the claim is, I find, a product of its own unreasonable failure to attempt to make contact with Cable, and to take steps to secure his evidence. In my view, to accept otherwise would, adopting what was said by Bathurst CJ in Anderson at [494], “itself bring the administration of justice into disrepute.”
Those last few words make it clear that broader notions of justice are at play in this decision. And whilst somewhat finely balanced, they do seem to support the success enjoyed by the Plaintiff. I like it when cases are decided that way. This is how they all should be…and in my client’s favour of course!
the blue bag 