The long-awaited High Court decision in Willmot v Queensland [2024] HCA 42 has been published and explores the complex intersection of historical sexual abuse claims, abuse of process, and the right to a fair trial.
The case involved Ms Willmot, a complainant who sought damages for sexual and physical abuse suffered more than 50 years ago while she was in the care of the Queensland State Children’s Department. The State of Queensland, as the respondent, sought to have the proceedings permanently stayed on the grounds of abuse of process, arguing that the passage of time had made a fair trial impossible.
Those in the abuse space will be familiar with the decisions below but by way of reminder, the primary judge granted a permanent stay of the proceedings. The Court of Appeal of the Supreme Court of Queensland dismissed Ms Willmot's appeal against the stay, in a decision delivered before the High Court’s decision in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore[1]. Ms Willmot was granted special leave to appeal.
This case raises crucial issues related to the abolition of limitation periods for claims arising from child sexual abuse, the challenges posed by fading memories and loss of evidence, and the balance between access to justice and the right to a fair trial.
Background of the Case
Ms Willmot, born in April 1954, was an Indigenous woman who spent her childhood under the care of the State of Queensland. Under the State Children Act 1911 (Qld), she was a "State Child" from infancy until about September 1966. During this period, the Director of the State Children Department had complete authority over her care, including the power to detain her in an institution or place her in the custody of a suitable person. Ms Willmot alleged that while in the State’s care, she suffered both sexual and serious physical abuse.
In June 2020, over five decades after the alleged abuse, Ms Willmot brought a claim against the State for damages for personal injuries caused by the abuse. The claim was made under the provisions of the Limitation of Actions Act 1974 (Qld), which, through section 11A, removes the limitation period for claims resulting from child sexual abuse or serious physical abuse. The legal issue that arose was whether the significant delay in bringing the claim, combined with the death of key witnesses and the absence of documentary evidence, made the proceedings an abuse of process that should be permanently stayed.
Grounds of Appeal
Ms. Willmot's appeal contained two primary groups of grounds:
General Allegations:
Grounds 1 & 2: Challenged the Court of Appeal’s reasoning that the inability to investigate certain witnesses or evidence was not significant. These grounds addressed the issue of whether the State needed to show it would be in a "materially different" position if the relevant witnesses were alive. However, the key issue was whether a fair trial was possible, not whether the State could establish its case more effectively if the witnesses were available.
Ground 4: Concerned the psychiatric evidence provided by two expert doctors, Dr. Khoo and Dr. Pant. The Court of Appeal relied on the difficulties in disentangling the impact of different alleged abusive events on Ms. Willmot’s psychological condition to support its decision to stay certain allegations. Ms. Willmot contested the use of this psychiatric evidence, arguing it was improperly applied to a procedural matter (the stay application) rather than to a substantive trial issue.
Specific Allegations:
Ground 3: Concerned the Demlins Allegations, particularly evidence from RS, another alleged victim, who claimed to have witnessed the abuse of Ms. Willmot. The Court of Appeal had found that RS' testimony did not "repair" the inability of the State to investigate or cross-examine foundational facts. Ms. Willmot challenged this finding, arguing that the evidence from RS should have been treated as significant in making the case fairer for the State.
Ground 5: Related to the NW Allegation, in which Ms. Willmot contended that the Court of Appeal's ruling that NW, a key witness, was still alive was significant. She disagreed with the Court's reasoning on the importance of NW’s testimony for the trial’s fairness.
Issues with the Psychiatric Evidence
The psychiatric evidence became a focal point in the appeal:
Dr. Khoo's Report: Dr. Khoo reported that Ms. Willmot’s memories of the abuse were fragmented, and she had difficulty recalling specific events. He contrasted her vague recollections of sexual abuse with her clearer memories of other traumatic events.
Dr. Pant's Report: Dr. Pant also reported that it was difficult to separate the impacts of various abusive events on Ms. Willmot’s condition. However, Dr. Pant did not argue that it was "insurmountably difficult" to disentangle the various allegations of abuse, but rather acknowledged the complexity of the case.
The Court of Appeal had treated these reports as supporting the finding that the allegations could not be disentangled, making the trial unfair. However, Ms. Willmot argued that the psychiatric reports were not properly directed at the procedural issue of whether the trial could be fair and should not have been used to make determinations about the truth of the allegations.
State’s Submissions
The State’s position focused on the difficulty of establishing causation between the various allegations of abuse and the resulting harm to Ms. Willmot. The State argued that separating the impact of the different incidents of abuse, along with other life stressors, would be "insurmountably difficult." However, Ms. Willmot countered that once she established a prima facie connection between a specific act of abuse and her injury, it was the State's responsibility to show that the injury was caused by another event. She also noted that the evidence could be scrutinized and further tested at trial.
Understanding Permanent Stay of Proceedings: Legal Principles and Applications
A permanent stay of proceedings is an extraordinary remedy in the legal system that halts the continuation of a case. This measure is only applied in exceptional circumstances where continuing the proceedings would undermine the fairness of the trial, create undue hardship, or bring the justice system into disrepute. The principles governing permanent stays are rooted in the common law, and courts generally reserve this remedy for situations where a trial cannot proceed fairly due to specific factors, including an unreasonably delayed start to the proceedings.
Key Principles of Permanent Stay of Proceedings
The key principles of a permanent stay of proceedings was articulated by Bell P in Moubarak v Holt[2] and involves a set of guiding principles:
Burden of Proof: The onus of proving that a permanent stay should be granted lies squarely with the defendant. It is up to the defendant to demonstrate that the continuation of the case would result in an injustice.
Exceptional Circumstances: A stay should only be ordered in exceptional circumstances. Courts are reluctant to stay proceedings unless it is clear that continuing would be manifestly unfair.
Interests of Justice: A stay should be granted only when the interests of the administration of justice demand it. This may include cases where continuing would be oppressive or vexatious.
Categories of Stay: The types of cases in which a permanent stay may be granted are not limited.
Oppressive or Vexatious Proceedings: A permanent stay can be granted when the proceedings are shown to be oppressive or vexatious. This includes cases where continuing the case would cause serious and unfair prejudice or damage to a party.
Manifest Unfairness: A stay may be ordered if continuing the proceedings would be manifestly unfair to a party involved. This could arise from circumstances where evidence is no longer available, witnesses are deceased, or key facts are lost.
Administration of Justice: Finally, if continuing the case would bring the administration of justice into disrepute, the court may grant a permanent stay. This is typically the case when continuing a trial would result in a miscarriage of justice or when the case has no merit.
The Role of Fairness in the Evaluation Process
The central inquiry in any application for a permanent stay is whether a fair trial is possible. Courts will assess whether the continuation of the trial will be so unfair or oppressive that it would constitute an abuse of process. If a fair trial can still be held, then the case should generally proceed. If the circumstances make it clear that the trial will be fundamentally unfair, a stay will likely be granted.
The question of whether a trial will be unfair or oppressive is inherently fact-sensitive. The unique facts of each case must be carefully evaluated to determine whether fairness can be achieved. In particular, courts must consider whether the loss of evidence, faded memories, or the death of witnesses would render a fair trial impossible.
The Impact of Limitation Laws on Permanent Stays
Recent legislative changes, such as the enactment of Section 11A of the Limitation of Actions Act, have had a significant impact on the application of the stay principles. This provision allows victims of child sexual abuse to file claims long after the alleged abuse occurred, even if the statutory limitation period has expired.
While this law has opened the door for claims that would have previously been barred, it also introduces the challenge of impoverished evidence, where key documents or witnesses may no longer be available. The principle established in Moubarak and later discussed in GLJ confirms that the passage of time alone is not sufficient to justify a stay; the defendant must show that the loss of evidence or fading memories has rendered a fair trial impossible.
This creates a "new reality" in the courtroom. Courts now regularly handle cases involving serious allegations made many years after the events in question, often with limited documentary evidence or direct corroborating testimony. The impoverishment of evidence due to the passage of time must be substantial enough to make a trial unfair. However, the law recognizes that in cases involving historical child abuse, this may be a common feature, and the courts have developed techniques to handle such cases fairly.
Techniques to Ensure Fairness in Trials Involving Impoverished Evidence
Courts have developed various techniques to deal with the challenges posed by impoverished evidence in cases of delayed claims. These include:
Civil Standard of Proof: The standard of proof required in civil cases can vary depending on the gravity of the facts to be proved. More serious allegations may require a higher degree of satisfaction in the evidence.[3]
Weighing Evidence: Courts will consider the evidence that was available and assess it based on the ability of one side to present evidence and the ability of the other side to challenge it.[4]
Uncontradicted Evidence: A court is not obliged to accept uncontradicted evidence, and facts must be proven by a reasonable basis.[5]
Human Fallibility: Courts recognize that human memory is fallible, particularly when significant time has passed, and will account for this in the evaluation of witness testimony.[6]
Cases Involving Deceased Individuals: If a claim involves a deceased individual, courts are particularly cautious, scrutinizing the available evidence closely to avoid unfairly disadvantaging the defendant.[7]
The High Court Decision
The central issue was whether any prospective trial will be unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process.[8] If a fair trial can be held and will not be so unfairly and unjustifiably oppressive as to constitute an abuse of process, a court ordinarily has a duty to hear and decide the case.[9] If the trial will be necessarily unfair, a stay must be ordered.[10]
In its judgment, the High Court addressed several key legal principles:
Removal of limitation periods and the right to a fair trial: The High Court emphasized that the abolition of limitation periods for claims involving child sexual abuse and serious physical abuse was a legislative decision aimed at ensuring that victims could seek justice, regardless of the time elapsed. While the passage of time certainly made the trial more difficult, it did not automatically deprive the defendant of a fair trial. The Court noted that the State’s right to a fair trial could be safeguarded through judicial management of the proceedings.
Fairness of the trial: The High Court reaffirmed that the fairness of the trial should be assessed on a case-by-case basis, with a focus on how the trial is conducted, rather than the mere passage of time. The Court held that the trial judge had the discretion to address issues of fairness, such as the reliability of witness testimony and the handling of lost evidence.
Abuse of process: The High Court held that an abuse of process claim could not be based solely on the delay in bringing the case. The Court made it clear that a permanent stay of proceedings should only be granted in exceptional circumstances, where it was clear that the trial could not proceed fairly. In this case, the High Court found that no such exceptional circumstances existed.
Access to justice for victims: The High Court also reinforced the principle that victims of child sexual abuse should have access to justice, even if the events occurred many years ago. The decision underscored the Court’s recognition of the historical abuse of State children and the importance of allowing such claims to be heard, while balancing the rights of defendants to a fair trial.
By majority decision, the appeal was allowed in part.
The Balancing Act of Justice
The decision to grant a permanent stay of proceedings is not one that courts take lightly. It is a last resort remedy, applicable only in exceptional cases where continuing a trial would be unjust or oppressive. While recent legislative changes have created a new legal framework, particularly in cases of child sexual abuse, the right to a fair trial remains a cornerstone of the justice system.
In applying the stay principles, courts must balance the interests of the parties involved with the need to maintain the integrity of the justice system. The task is to determine whether the trial will be so unfair or burdensome that it amounts to an abuse of process. This requires careful consideration of the facts, the available evidence, and the specific context of the case.
As the law evolves to address modern challenges, such as claims made long after the events occurred, the principles governing stays will continue to evolve. However, the fundamental right to a fair trial will remain central to the judicial process, guiding courts in their determination of whether a permanent stay is warranted.
Conclusion
Willmot v Queensland [2024] HCA 42 is a significant decision that clarifies how courts should handle historical sexual abuse claims, particularly in cases where significant time has passed, and crucial evidence may be lost. The High Court’s ruling reaffirms the principles of access to justice for victims of historical abuse, while also recognizing the importance of safeguarding the fairness of trials. By allowing Ms Willmot’s case to proceed, the High Court has reinforced the broader societal commitment to ensuring that historical abuse claims are heard, while maintaining the integrity of the trial process.
This article should not be taken as legal advice. If you have a matter that deals with the subject matter of this article then you should seek independent legal advice regarding the particular circumstances of your case.
Liability limited by a Scheme approved under professional standards legislation.
[1] (2023) 97 ALJR 857; 414 ALR 635.
[2] (2019) 100 NSWLR 218 at 233-234 [71]
[3] Briginshaw v Briginshaw (1938) 60 CLR 336; GLJ (2023) 97 ALJR 857 at 874-875 [57]; 414 ALR 635 at 654.
[4] Blatch v Archer (1774) 1 Cowp 63 at 65 [98 ER 969 at 970]; GLJ (2023) 97 ALJR 857 at 875 [58]; 414 ALR 635 at 654.
[5] Jones v Dunkel (1959) 101 CLR 298 at 305; GLJ (2023) 97 ALJR 857 at 875 [60]; 414 ALR 635 at 655.
[6] Watson v Foxman (1995) 49 NSWLR 315 at 319. See also Longman (1989) 168 CLR 79 at 107-108; GLJ (2023) 97 ALJR 857 at 875 [59]; 414 ALR 635 at 655.
[7] Plunkett (1915) 19 CLR 544 at 548-549; Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164 at 179 [66]; GLJ (2023) 97 ALJR 857 at 875-876 [61]; 414 ALR 635 at 655-656.
[8] GLJ (2023) 97 ALJR 857 at 868 [23]; 414 ALR 635 at 645. See also Walton v Gardiner (1993) 177 CLR 378 at 393; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 518-519 [24]-[25]; Rozenblit v Vainer (2018) 262 CLR 478 at 498 [66]; UBS AG v Tyne (2018) 265 CLR 77 at 127 [136].
[9] GLJ (2023) 97 ALJR 857 at 868 [23]; 414 ALR 635 at 645.
[10] GLJ (2023) 97 ALJR 857 at 868 [23]; 414 ALR 635 at 645.