In brief: Willmot v State of Queensland  QSC 167 follows recent trends in New South Wales in respect of permanent stay of proceedings in historical abuse cases.
The plaintiff commenced a claim for damages against the State of Queensland claiming psychiatric injury suffered as a result of repeated sexual abuse and/or serious physical abuse whilst a ward of the State of Queensland between 1957 and 1967. In particular, the plaintiff alleged that she was abused:
from 1957 to 1959 whilst in the care of foster parents;
in or around 1959 whilst at a girl's dormitory in Cherbourg; and
in about 1960 and 1967 when visiting her grandmother's house.
The plaintiff alleged that three siblings, two sisters and a brother referred to as RS, CS and AS, also resided with her and her foster parents during the relevant period. The plaintiff alleged that her foster father had sexually abused her. RS provided an affidavit also alleging her foster father had sexually abused RS in a similar manner, and that she had also witnessed him sexually abuse the plaintiff and CS.
The foster father was deceased at the time the plaintiff commenced her claim in 2019. The solicitor for the State provided an affidavit confirming no records could be located detailing any abuse of the plaintiff whilst she was in foster care, at Cherbourg, or visiting her mother.
The plaintiff told Dr Khoo, psychiatrist that she did not have any recollection of the sexual abuse perpetrated by her foster father until RS advised her of this in 2016. However, at the time of the application hearing, the plaintiff provided an affidavit stating she had an independent recollection of the sexual abuse perpetrated against her by her foster father, when she was three to four years old.
The plaintiff argued that a permanent stay should not be granted in respect of the plaintiff's claim relating to her foster father's abuse because the State had the opportunity to cross-examine the plaintiff and RS and test the veracity of their allegations and evidence.
However, Chief Justice Bowskill disagreed, referring to Martin J's comments in Chalmers v Leslie, stating "[an] unfair trial cannot be made fair on the basis that something might emerge from cross-examination of another party". Her Honour determined that the State's inability to put the allegations to the plaintiff's foster father, and in the absence of any records of prior reports or complaints of the alleged abuse, meant the State could not have a fair trial in its defence of the plaintiff's claim.
The plaintiff also alleged she suffered serious physical abuse by a matron at the Cherbourg dormitory. The matron had died in October 1982, several decades prior to the plaintiff reporting her complaint to the State via its redress scheme in 2008.
Other employees of the State who may have been able to give relevant evidence in relation to the matters alleged by the plaintiff had also died prior to the plaintiff commencing her claim.
The State's records contained an anonymous complaint made about the matron's use of excessive physical punishment towards children residing at the dormitory but a subsequent investigation revealed the complaint was unfounded.
The plaintiff sought to rely on affidavits sworn by four former residents at the dormitory who alleged they were also physically abused by the matron. The affidavits gave evidence that the matron was a "nasty woman" who hit the children. The State objected to the admissibility of the four affidavits on the basis that they were not relevant to any issue on the proceeding given they did not refer to the plaintiff. The plaintiff submitted that the affidavits supported the allegation that there was no system of monitoring and supervising children in their dormitories. Bowskill CJ held that three of the affidavits were admissible. However, one affidavit was not admissible as the witness resided at the dormitory during a much earlier period than the plaintiff and due to her lack of first-hand knowledge of the matron.
Whilst there was evidence of other former residents at the dormitory who alleged they were also physically abused by the supervisor, Bowskill CJ also decided that the State could not have a fair trial if those allegations could not be put to the matron.
The plaintiff also alleges that she suffered sexual abuse on two further occasions whilst at her grandmother's house. She alleged the abuse was perpetrated by her uncle (NR) and her cousin/great uncle.
The State could not locate any records relating to the plaintiff's allegations.
NR was 78 years old and alive at the time of the application. The plaintiff's cousin/great uncle was assumed to be deceased given his age that the plaintiff estimates he was in 1967.
Bowskill CJ noted that whilst the State and the plaintiff are able to speak with NR, he is 78 years old and would be asked about something he is alleged to have done as a teenager. Her Honour found that it would be insurmountably difficult to extricate this one event from the plaintiff's allegations of what happened at the foster parents' house, the dormitory, or other subsequent life events, in determining causation.
Section 11A(1) of the Limitation of Actions Act 1974 (Qld) provides that an action for damages relating to personal injury resulting from the abuse of a person when they were a child may be brought at any time and is not subject to a limitation period. The removal of the limitation period was followed by a recommendation by the Royal Commission that the limitation period “should however be balanced by expressly preserving the relevant courts’ existing jurisdictions and powers to stay proceedings where it would be unfair to the defendant to proceed”.
The court has a broad discretion to permanently stay a proceeding as “an incident of the general power of a court of justice to ensure fairness”.
Recent caselaw indicates that where a permanent stay has been granted, it is due to the consequences of the lengthy passage of time and a fair adjudication of the serious allegations made is not possible.
Discussion and Findings
The plaintiff's claim was brought on the basis of direct liability of the State for negligence and not vicarious liability for the conduct of the foster parents or the matron of the dormitory. The allegations of negligence related to failure to supervise or properly monitor the plaintiff.
The State relied on an affidavit of the solicitor for the State deposing the various searches, requests for documents and enquiries the State had made to obtain such documentary evidence. The affidavit stated that the solicitor had perused all of the documents which have been obtained as a result of various searches and there was no record in any of the documents of any abuse of the plaintiff whilst she was at Cherbourg, living with the foster parents or visiting her grandmother.
The State argued that it had no way of investigating whether or not the alleged assaults and/or abuse occurred because there were no documents addressing the allegations and relevant witnesses (except NR) are deceased.
Bowskill CJ considered that it is possible some further searches could be undertaken, and some further documents may emerge which may assist the plaintiff in relation to her allegations insofar as the system in place for children in the care of the State. However, the key witnesses in relation to the foundational allegations in respect of whether the alleged abuse occurred, have long been deceased.
Her Honour found that given the consequences of the passage of time and the impact on this on the availability of witnesses and evidence, a fair trial was not possible. A permanent stay of proceedings was granted.
Implications of the decision
This recent decision is critically important for Queensland institutions and reflects recent similar decisions in New South Wales (see The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ  78).
When the limitation period for personal injury arising from child abuse was abolished pursuant to section 11A of the Limitation of Actions Act 1974, the Court retained the discretion to award a permanent stay to a defendant who is unable to fairly defend the matter because of the passage of time. The Court is required to consider the balance between allowing a claim for child abuse to be made at any time and ensuring that the defendant is not unfairly prejudiced by the unavailability of documents or witnesses in defending the claim at trial.
In this case, the plaintiff did not advance a case of vicarious liability and seek to plead that any of the alleged perpetrators had a propensity or tendency to offend in the manner alleged, and instead claimed the State was directly liable for failing to implement an adequate system of supervision, monitoring and reporting. However, Bowskill CJ found that whether the alleged abuse occurred was the foundation of the plaintiff's case even though the plaintiff did not seek to rely of the affidavits in respect of proving propensity and tendency. As such, it was necessary for the State to put the allegations of abuse to the alleged perpetrators in order for the State to have a fair trial.
Of particular importance is Bowskill CJ's consideration of approaching a permanent stay where multiple offenders are involved. The judgment supports that whilst one perpetrator may be alive, it is difficult to disentangle the causal significance of each event. This may result in the entire proceeding being permanently stayed, as was the case here.
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