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Back to "Education Law Notes - Term 2 2022"


Stopping claims of historical child sexual abuse

Before the Royal Commission into Institutional Responses to Child Sex Abuse, victims of historical sexual abuse were generally barred from commencing civil action in the Courts – they were “out of time”.  However, following the Royal Commission’s recommendations, all States and Territories have legislated to remove limitations with respect to child sexual abuse, and in some States, physical and other forms of abuse.

While the reforms for survivors are welcomed, there is an inherent difficulty for education institutions attempting to defend themselves against historical abuse claims on account of the effluxion of time.  Where this is thought to occur, orders can be sought from the courts to permanently “stay” a proceeding. 

The Applicable Principles  

A 2021 NSW Supreme Court decision provides a useful summary of the applicable principles on permanent stays.  The Court accepted that proceedings should be stayed where:

  1. the interests of justice so demand or where the continuation of the proceedings would bring the administration of justice into disrepute;
  2. the effect of the proceedings is oppressive (being unfairly burdensome, prejudicial or damaging), or where their continuation would be vexatious; or
  3. the continuation of the proceedings would be manifestly unfair to a party.

The Court also accepted that the onus to prove that a proceeding falls foul of the applicable principles lies squarely with the School, and accepted that “prejudice” for the purposes of assessing whether a stay should be granted included:

  1. the death of a witness;
  2. the destruction of or inability to locate documents;
  3. the possibility that evidence has disappeared without persons knowing it ever existed;
  4. the general diminution of the body of evidence available; and
  5. the unreliability of “faded” evidence, or evidence recalled over a number of occasions where the events in question provoke an emotional reaction.

Application of the Principles

In the case, Andrew commenced proceedings against the School for damages arising from incidents of sexual abuse alleged to have taken place in 1981, while he was in Year 6.  The allegations named the then Head of Primary as the perpetrator.  Andrew alleged the School breached its duty of care to him, and additionally and alternatively, that the School was vicariously liable for the acts of the Head of Primary.  At the time the complaint was first raised, the Head of Primary and other material witnesses had died. 

In applying for a stay, the School undertook extensive investigations to support its submissions (i.e. to “discharge the onus”) that due to the lack of key documents and the unavailability of key witnesses, it ought to be granted a stay of proceedings.  Relevantly:  

  1. The Head of Primary had died, as had his wife. None of his diaries were located by the School.  There was no prior record of alleged sexual assault made in relation to him.
  2. The School Principal when the Head of Primary was appointed and the Principal when the alleged assaults occurred had both died. A teacher who may have been able to provide particularly relevant evidence had also died. 
  3. A private investigator took extensive steps to contact Andrew’s 1981 classroom teacher. While the investigator established the teacher was alive, he couldn’t be found.
  4. A private investigator was also retained to locate various support staff who worked in or around the Head of Primary’s office but was unsuccessful.
  5. The School did not approach fellow students on the basis that they were thought unable to speak to incidents alleged to have occurred in the Head of Primary’s office, and that they would not be able to give evidence as to the knowledge or presumed knowledge of the School.

In summary, the School submitted it was not able to positively contradict the allegations made by Andrew in the absence of the Head of Primary, and that it had made more than reasonable efforts to ascertain the whereabouts of key persons in its employ who might be thought to assist in the defence.  The School argued in the circumstances that the court proceedings were unfair, and that their continuation would bring the administration of justice into disrepute if findings were made of conduct occurring that constituted serious criminal conduct in the absence of the Head of Primary, and that this was especially so where the Head of Primary was alive for much of the period between the alleged incidents and the commencement of the proceedings.

While Andrew submitted that the proceedings should not be stayed, and argued among other things that there was evidence available to the School to substantiate its case, the Supreme Court granted the School’s application for a permanent stay, with the judge stating:

There is a significant lack of records. The plaintiff [Andrew] can give evidence to the alleged sexual assaults but the alleged perpetrator has passed away. A number of witnesses who could give meaningful evidence have died and those who have not, are unable to shed light on the veracity of the plaintiff’s allegations. The plaintiff’s preparatory school records cannot be located, and there is no statement of duties or organisational charts that relate to [the Head of Primary]. Crucially there is no report of any alleged sexual abuse by [the Head of Primary] in relation to the plaintiff or indeed any other student. There is also a lack of insurance cover…

It is therefore my view that despite making extensive enquires, the School is unable to meaningfully deal with the claim and a continuation of the proceedings would be unjustifiably oppressive and manifestly unfair to the defendant [the School]. This is in my opinion, a regrettable conclusion, however these are exceptional circumstances. A permanent stay of proceedings should be granted.

The judgement highlights the possibility of a permanent stay being granted in circumstances where evidence relevant to proceeding is unavailable or impoverished, where extensive but not exhaustive enquires were made by a school to obtain relevant evidence, and where the consequences of any delay impacting the proceedings was not due to the school. 

The judgement reinforces that a decision to grant a stay of proceedings is exceptional, and that the facts of a given case and the quality of the evidence put before the courts by defendants establishing prejudice remain of paramount importance.

If you need assistance with claims against your school, please contact Greg McAllister.

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