• February 22, 2021

To stay or not to stay – the Court answers a historically sexually abused plaintiff

To stay or not to stay – the Court answers a historically sexually abused plaintiff

To stay or not to stay – the Court answers a historically sexually abused plaintiff 900 577 aelegal

UGLE -v- MASTERS [2021] WADC 8

This was a historic child sexual abuse action against the defendant. The plaintiff alleged that he had been declared a neglected child, taken from his parents, committed to the care of the Child Welfare Department, and housed at a Mission (Mission) between 1960 and 1966. The defendant was the assistant superintendent in charge of the Mission at the relevant time. The Plaintiff alleged that while he stayed at the mission, he was in the care of the defendant between 1960 to 1964, and that the defendant indecently dealt with him on two separate occasions.

The defendant applied for the setting aside of the writ of summons and a permanent stay of the main action, based on the fact that the alleged offending occurred 56 years ago, being a significant delay.

The Court stated that it is a fundamental principle that a plaintiff is entitled to have his or her action tried in the ordinary course of the procedure and business of the court. However, the court may stay such an action if there are exceptional circumstances that make it in the interests of the administration of justice to do so. The burden of proving these exceptional circumstances rests on the defendant and that there are no closed set of cases which bind the court. However, one set of cases where the court will generally grant a stay of proceedings is where the proceedings or there continuance would be vexatious or oppressive and, another set of cases is when the continuation of the matter would bring the administration of justice into disrepute amongst right-thinking people. Oppressiveness will be found where the effect of the proceedings is seriously and unfairly burdensome, prejudicial, or damaging. Courts will generally be more inclined to grant a stay in criminal than in civil matters.

The court then considered the impact of the 56-year delay in bringing the application and outlined the obvious difficulties involved such as the loss of evidence and fading of memories. The court then noted the removal by the legislature of any limitation period for the bringing of historic child sexual abuse actions by introducing s6A (5) of the Limitation Act 2005. The court held that the public interest factors that underpin the removal of the limitation period by the legislature are of such a compelling nature that the removal of the limitation period was intentionally made retrospective by Parliament. The court also noted the compelling interests of claimants in having the opportunity to present their allegations in court by providing both therapeutic benefits and a sense of closure.

The court stated the most important factor was that the Defendant received a fair trial. A fair trial however was not a perfect trial and the court held that a trial is fair if the defendant has the ability to give instructions, to decide what defense will be relied on and to make the defendant’s version of facts known to the court and his counsel.

The court considered several earlier decisions dealing with stays of action and concluded that he medical evidence that was provided showed that the defendant had suffered from a stroke and cognitive impairment. Furthermore, that attending a court hearing may potentially precipitate a life-threatening stroke and that any significant stressor, for example, having   to   face   a   court   hearing, would carry a significant chance of causing another stroke. The court held that none of the evidence suggested that the defendant would not be able to provide proper instructions to his legal representatives and that his frailties could be accommodated in a non-threatening manner.

The application for a stay was thus refused and the mater continues.

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