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The limits of no limitation: how the issue of prejudice affects the removal of limitation periods in child abuse claims[1]

The limits of no limitation: how the issue of prejudice affects the removal of limitation periods in child abuse claims[1]

Published on December 16, 2019 by Alex Collie and Bill MaddenAlex Collie and Bill Madden

Please note that the decision referred to in this article of Anderson v The Council of Trinity Grammar was reversed on appeal. See The Council of Trinity Grammar School v Anderson [2019] NSWCA 292.

Under Case Study 25 of the Royal Commission into Institutional Responses to Child Sexual Abuse, entitled Redress and Civil Litigation, the Commission considered the past and present legal environment for claimants who have experienced sexual abuse, and the options available to them and obstacles they face in seeking redress or compensation.

The Final Report on this Case Study[2] made four recommendations in respect of limitation laws:

  1. That all state and territory governments remove any limitation period for personal injury claims relating to sexual abuse of a person in an institutional context when the person was a child.
  2. That the removal of limitation periods have retrospective effect.
  3. That any removal of limitation periods should expressly preserve the relevant courts’ powers to stay proceedings.
  4. That the removal of limitation periods be implemented as soon as possible, even if this means implementation prior to certain other recommended law reforms.[3]

Since the Final Report, every jurisdiction in Australia has removed limitation periods in respect of child sexual abuse claims, with the exception of Victoria which had removed limitation periods a few months prior to the publication of the Report.

However, the amendments have not been uniform. Although all jurisdictions removed limitation periods in respect of child sexual abuse (as recommended), many have also extended the type of abuse for which the limitation periods no longer apply:

Jurisdiction Limitation period removed in respect of:


Sexual abuse, including to witness sexual abuse[4]


Sexual abuse, serious physical abuse and connected abuse[5]


Sexual abuse, serious physical abuse, extending to psychological abuse that arises from that abuse[6]


Sexual abuse[7]


Sexual abuse, serious physical abuse, extending to related psychological abuse[8]


Sexual abuse, serious physical abuse, extending to psychological abuse that arises from that abuse[9]


Physical abuse or sexual abuse, extending to psychological abuse that arises from that abuse[10]


Sexual abuse[11]

Despite the variance among jurisdictions as to the nature of the claims for which limitation periods have been removed, the Commission’s recommendation to expressly retain the power of courts to stay proceedings has been followed throughout Australia. As a result, a person bringing a claim in respect of historical child abuse may encounter an obstacle where they have delayed commencing the claim, despite the lack of any limitation period.

Stay of proceedings and prejudice issues prior to limitation reforms

The ability for a court to permanently stay proceedings has been described both as an inherent and implied power in order to prevent abuse of proceedings.[12] The power has occasionally also been provided through statute.[13] The nature and application of this power was explained by Batistatos v Roads and Traffic Authority of New South Wales.[14] The majority (Gleeson CJ, Gummow, Hayne and Crennan JJ) stated:

‘The plaintiff certainly has a “right” to institute a proceeding. But the defendant also has “rights”. One is to plead in defence an available limitation defence. Another distinct “right” is to seek the exercise of the power of the court to stay its processes in certain circumstances. On its part, the court has an obligation owed to both sides to quell their controversy according to law.

… The “right” of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.’[15]

Reasons for which a court has granted a permanent stay of proceedings have included:

  • delay in the action and where there was difficulty locating those involved in the relevant events;[16]
  • lack of key documentary evidence;[17]
  • delay resulting in fading memories of witness, and death of witnesses;[18] and
  • where a permanent stay has been granted for earlier similar claims.[19]

The decision of Prince Alfred College Incorporated v ADC[20] did not involve an application for a permanent stay, but rather an application by the plaintiff to extend the then limitation period under South Australian law. This situation is the inverse to one in which a permanent stay is sought despite no limitation period applying, as the onus is instead on the party that brought the original claim (the plaintiff) to show that a fair trial is possible despite the passage of time.

The majority of the Court (French CJ, Kiefel, Bell, Kean and Nettle JJ) in that decision stated:

‘That onus is not discharged by saying that the putative defendant should have been more astute to conserve its own interests by anticipating litigation that did not eventuate until many years after the expiration of the limitation period.’[21]

A significant matter in that decision was the fact that proceedings had been brought by the plaintiff against the individual accused of abuse over a decade prior to the issue of proceedings against the school. This was seen in the context of the proceedings to have been a deliberate matter, with the majority commenting:

‘It is an error of principle not to regard the arrangements made by the respondent with the school as significant. Where an injured party makes a deliberate decision not to commence proceedings, there must be strong reasons to permit proceedings to be brought against a defendant who reasonably considered that the dispute had been laid to rest. It has been recognised that there is an element of oppression involved in bringing an action so long after the circumstances which gave rise to it have passed.[22]

Connellan v Murphy – The first application

Connellan v Murphy[23] appears to be the first instance of an appellate court considering a permanent stay of proceedings following the limitation period reforms. The circumstances involved allegations by the plaintiff (born in 1961) that the defendant (born in 1954) sexually assaulted her on two occasions in ‘approximately 1967 or 1968’.

Some 50 years had passed before proceedings were commenced and by then the only potential adult witnesses, being the plaintiff’s mother and defendant’s parents, were deceased. The defendant applied for a permanent stay of proceedings on the grounds of abuse of process and/or irretrievable prejudice caused by delay in commencing proceedings. This application was initially dismissed by the trial judge.[24] The defendant appealed. In considering the matter, the Victorian Court of Appeal identified the following propositions when considering applications for a permanent stay:

  1. In order to justify the grant of a stay, a defendant bears a heavy onus. A stay is ordinarily only granted in exceptional circumstances, because it effectively brings to an end litigation without adjudication.
  2. The categories of abuse of process are not closed.
  3. In particular, the concept of an abuse of process is not confined to cases in which, if the action were to proceed, the defendant would not receive a fair trial.
  4. The fundamental test is whether, in the circumstances, the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people [Citations omitted].[25]

It was noted that while the ‘principal protagonists’ in this matter (being the plaintiff, the defendant and two other individuals whom the plaintiff alleged were involved in the assault) appeared available to give evidence, and while ‘it could be said [at one level] that there can be a fair trial’, this view was too narrow when considering the possibility of an abuse of process.[26]

The ‘heavy onus’ identified by the Court of Appeal was found to have been discharged due to the ‘exceptional circumstances of the specific facts in this case’[27] including the need for the defendant (and his brother) to recall events occurring many years ago when he was a child, concerns regarding the identity of another witness, the absence of particular adult witnesses, and the fact that the house in which the alleged events were said to have occurred no longer existed.

Moubarak v Holt

Moubarak v Holt[28] marked the second appellate court consideration of an application for a permanent stay since the removal of limitation periods. The claim was in respect of allegations by the plaintiff against the defendant, her uncle, of sexual abuse in or around 1973 when she was 12 years old. The defendant (and applicant for the permanent stay) was 86 years old when the proceedings were brought and had advanced dementia, such that he could not take an active role in the proceedings.

Justice Bell’s decision (with whom Leeming JA and Emmett JA agreed) identified the following three issues in the matter:

‘What role, if any, does delay in bringing proceedings play (both as a matter of general principle and in the particular circumstances of this case) in an assessment of whether the defendant would be deprived of a fair trial, and what is the significance, if any, of the existence or absence of any explanation for such delay?

Does a fair trial require as an essential element that the defendant be able to participate in the proceedings (in the sense of giving instructions and having the ability to give evidence) or could a fair trial nonetheless be possible where an otherwise incompetent defendant is represented by a tutor who is empowered to conduct a defence of the proceedings?

What relevance, if any, does the public interest in allowing claims for damages for historical sexual assault to be heard have in assessing whether or not a fair trial is available?’[29]

While Bell P noted that the plaintiff was not required to provide any explanation for why the delay may have occurred, it still remains a matter of significance where limitation periods no longer apply.[30] The defendant had not been presented with detail of the plaintiff’s allegations prior to the onset of his dementia and thus was not given the opportunity to meaningfully respond to them. Due to the nature of the allegations, there were no other eyewitnesses to the plaintiff’s account or any documentary evidence.

As with Connellan, the court noted that the matter had particular ‘salient features’ that warranted the stay of proceedings, including:

  • The defendant was never confronted with the allegations of the plaintiff prior to the onset of his dementia.
  • The defendant had advanced dementia prior to any reporting to police or the commencement of proceedings.
  • The nature of the allegations meant that there were no eyewitnesses.
  • Due to his condition, the defendant was unable to give instructions in respect of his defence or during the course of the trial.
  • The defendant was unable to give any evidence and (unlike the Judd decision discussed below) there was no evidence of any response by the defendant in relation to the allegations.
  • The unlikelihood of any documentary evidence arising in respect of the allegations.
  • The 45-year delay in commencing proceedings, which alone would be insufficient to allow for a permanent stay, but was of some significance when considered in combination with the above matters.[31]

Judd decisions

Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd[32] involved three civil claims in respect of historical sexual abuse allegations from three separate plaintiffs against the estate of Mr Judd. The delay between the alleged assaults and the commencement of these claims ranged between 25 and 40 years. By a summons, the executors of the estate sought orders to have all three proceedings permanently stayed or otherwise dismissed.

Mr Judd had not received any notice of the claims prior to his death, although he had been charged in 2015 with indecency offences in respect of one of the plaintiffs. As part of the police investigation, a telephone conversation between Mr Judd and that plaintiff was recorded. Mr Judd had also provided instructions to his solicitor in the context of the criminal proceedings to the effect that he (Mr Judd) had engaged in sex with that plaintiff, but that it was consensual.[33]

Justice Garling stated that the court may only order a permanent stay in the ‘most exceptional of circumstances’[34] and that the applicant for a permanent stay bears a ‘heavy onus to discharge’.[35] The fact that particular obstacles to investigating the claims exist, such as a lack of documentary evidence or absence of a witness, does not in itself indicate that a permanent stay should be granted.[36]

Ultimately, Garling J declined to grant the permanent stay, his reasons for doing so including:

  • All three plaintiffs were alive and able to be cross-examined.
  • The credibility of plaintiffs could be challenged having regard to their criminal histories (if any) or any other relevant material.
  • Previous disclosures made to police, medical practitioners or other witnesses may be examined for consistency.
  • Some material was available that indicated the views of Mr Judd in respect to his relationship with one of the plaintiffs.
  • The buildings in which the alleged events were said to have occurred still existed and could be compared to descriptions given by the plaintiffs.
  • Some records such as photographs or vehicle registration could also be relied upon for comparison.[37]

Anderson v Trinity Grammar

Each of the above cases involved a claim made against an individual, or an individual’s estate. The next case, Anderson v The Council of Trinity Grammar,[38] involved an application for a permanent stay by an organisation, in this case a school.

The plaintiff alleged abuse by a teacher that was said to have taken place between 1974 and 1976 during camps and on journeys, but not at the school itself. The plaintiff first contacted the Anglican Church Diocese of Sydney in September 2004 and some correspondence involving the school took place. The civil claim was filed in 2014 and criminal proceedings were also commenced against the teacher for offences relating to the plaintiff, for which he was eventually convicted and sentenced some three years later.

This case differs from the above matters in that in this case there was no issue about whether the assaults occurred (with four of the assaults being admitted by the defendant). Rather, in issue was whether the assaults were in the course of the teacher’s ordinary duties or whether there was a negligent omission by the staff of the school or the school itself in placing the teacher in a position where the acts could occur.

Justice Rothman noted some of the factors set out in the defendant’s written submissions, which included:

  • witnesses may have died since the events in question;
  • documents may have been destroyed …;
  • prejudice may exist without the parties or anyone else realising that it exists in that decisive evidence may have disappeared without anybody knowing it ever existed;
  • the longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time the cause of action arose;
  • recollections fade and human recollection is fallible such that the longer the period between the event and its recall, the greater the margin for error;
  • recollection of events which occurred in childhood is particularly susceptible to error and is subject to the possibility that it may not even be genuine even if it is honest; and
  • the effluxion of time means that there may be a lack of opportunity for the defence to fully explore … the surrounding circumstances of each alleged offence.’[39]

The court dismissed the application, focusing in particular on the completeness of the evidence.[40] Justice Rothman gave examples of investigations that could have been conducted by the defendant but were not, such as only investigating certain teachers rather than all teachers at the school[41] and not investigating teachers who joined the preparatory school after the plaintiff’s departure who could have provided evidence in respect of the school’s camps.[42] It was also noted that the defendant did not contact the police or the Crown in respect of potential material,[43] nor did the defendant interview members of the school council or board, members of the Archdiocesan Council or other parents of the school whose children attended the camps.[44]

His Honour indicated that the following factors persuaded him that the defendant had not established that the requisite prejudice existed, being:

  • The plaintiff, the plaintiff’s parents and the alleged perpetrator were all alive and could give evidence.
  • Teachers who had been contacted gave sufficient instructions in respect of the organisation of the camps and whether the teacher did in fact attend as claimed.
  • The extent to which the defendant took reasonable steps to obtain evidence and the absence of express evidence that certain evidentiary statements did not exist.[45]


While the facts and outcomes of recent cases considering permanent stays differ, common themes and issues have arisen. The ‘heavy onus’ borne by the party bringing the application is often referred to, marking a significant departure from the approach taken in Prince Alfred College, where the party originally bringing the claim was said to bear the onus in respect of the question of prejudice.

The decisions emphasise the necessity for exceptional circumstances to exist for an application to be successful. Certain obstacles such as the unavailability of witnesses or the effluxion of time may not be sufficient on their own to merit a permanent stay.

The courts have recognised a strong public interest in ensuring that persons who have experienced sexual abuse as children be given the opportunity to seek compensation. Accordingly, it can be expected that such applications will receive a high level of judicial scrutiny and courts will be hesitant to grant stay applications, particularly where there is no factual dispute as to abuse having occurred.

‘This article – ‘The limits of no limitation: How the issue of prejudice affects the removal of limitation periods in child abuse claims’ – first appeared in Precedent, the journal of the Australian Lawyers Alliance, issue 155, published in December 2019 (Sydney, Australia, ISSN 1449-7719), pp 25-29. It has been reproduced with the kind permission of the authors and the ALA. For more information about the ALA, please go to:’

[1] Parts of this article have been drawn from B Madden, T Cockburn and B Madden, Institutional abuse of children: Legal remedies and redress in Australia, Lexis Nexis, 2019 (publication pending).

[2] Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation, Report, 2015, 52–53, <>.

[3] Ibid, Recommendations 85–88.

[4] Limitation Act 1985 (ACT), s21C.

[5] Limitation Act 1969 (NSW), s6A.

[6] Limitation Act 1981 (NT), s5A.

[7] Limitation of Actions Act 1974 (Qld), s11A.

[8] Limitation of Actions Act 1936 (SA), s3A.

[9] Limitation Act 1974 (Tas), s5B.

[10] Limitation of Actions Act 1958 (Vic), s27P.

[11] Limitation Act 2005 (WA), s6A.

[12] Jago v District Court of NSW (1989) 168 CLR 168.

[13] For example, a previous version of Supreme Court Rules 1970 (NSW), Pt 13 r5, repealed in 2005.

[14] [2006] HCA 27; 226 CLR 256.

[15] Ibid, [63], [65].

[16] Ibid.

[17] Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299.

[18] Johannsen & Chambers v DPP (1996) 87 A Crim R 126.

[19] Walton v Gardiner (1993) 177 CLR 378.

[20] [2016] HCA 37; 258 CLR 134.

[21] Ibid, [105].

[22] Ibid, [106].

[23] [2017] VSCA 116.

[24] Murphy v Connellan [2017] VCC 109.

[25] Connellan v Murphy [2017] VSCA 116, [54].

[26] Ibid, [56].

[27] Ibid, [66].

[28] [2019] NSWCA 102.

[29] Ibid, [11].

[30] Ibid, [75]–[76].

[31] Ibid [163]–[171].

[32] [2018] NSWSC 1489.

[33] Ibid, [71].

[34] Ibid, [122].

[35] Ibid, [123].

[36] Ibid, [124].

[37] Ibid, [127].

[38] [2018] NSWSC 1633.

[39] Ibid, [40].

[40] Ibid, [133]–[134].

[41] Ibid, [65].

[42] Ibid, [66].

[43] Ibid, [92].

[44] Ibid, [96].

[45] Ibid, [125]–[132].

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