A perpetrator of child sexual abuse can stay a claim in circumstances where the perpetrator can establish “sufficiently exceptional” prejudice. In the historical abuse context this is not so difficult.
The recent Victorian Court of appeal decision in Connellan v Murphy [2017] VSCA 116T demonstrates appellate consideration of the legislative amendments which eliminate the limitation period in historical sexual abuse/assault claims.
In this case, the events occurred almost 50 years ago in “approximately 1967 or 1968”. The plaintiff alleged that the defendant, a teenager, sexually assaulted her on 2 occasions when she was 13 years old and living at his family home for a week. The defendant denied the plaintiff’s allegations and asserted that the first time he met the plaintiff was in 2015.
Prior to July 2015, the plaintiff’s cause of action was prohibited by statute. However, the enactment of the Limitation of Actions Amendment (Child Abuse) Act 2015 (VIC) (“the Act”) removed the limitation period applicable to the plaintiff’s cause of action by inserting div 5 (ss 27O-27R) into the Limitation of Actions Act 1958 which allows plaintiffs with sexual abuse claims to commence proceedings without any limitation period. In April 2016, the plaintiff commenced proceedings in the County Court of Victoria, claiming damages for psychological injuries suffered as a result of the sexual assaults.
The defendant sought a permanent stay of proceedings on the basis of abuse of process and as his defence had been “irretrievably prejudiced” by reason of delay in bringing the proceedings. We note that the amending Act retains the Court’s power to summarily dismiss or permanently stay a proceeding where the lapse of time has a burdensome effect which is so serious, that a fair trial is not possible (s 27R).
The primary judge dismissed the stay application mainly on the ground that the purpose of the amending act was to provide greater access to justice for child abuse survivors and as the alleged perpetrators were alive and able to give evidence, the death of other key witnesses was not so serious as to prevent a fair trial.
The court of appeal allowed the appeal and granted a permanent stay of the proceedings. The court was of the view that it was unrealistic for the defendant at age 62 to be expected to defend a cause of action which occurred almost 50 years ago when he was a 13 year old. Although the principal protagonists were all alive and could give evidence; the main factors establishing that the proceeding was unjustifiably oppressive due to the time lapse were:
- the evidence at trial would be based on the plaintiff’s vague (and inconsistent) recollection of surrounding circumstances based on “childhood memories from long ago”
- Neither side would be in a position to investigate or call evidence about the relevant surrounding circumstances and events as all adult material witnesses had passed away including the plaintiff’s mother and the defendant’s parents.
The court affirmed that a stay is generally only granted in exceptional circumstances and in view of the consequences there is a substantial onus on the defendant.
The Court held that the circumstances in this case were sufficiently exceptional to entitle the defendant to a permanent stay of the plaintiff’s proceeding as it would be unjust to allow the proceeding to continue and that the fundamental test is whether, in the circumstances, the proceeding would be manifestly unfair to the defendant or would otherwise bring into disrepute among right-thinking people the administration of justice.
The equivalent legislative provision in NSW was introduced on 17 March 2016, Limitation Amendment (Child Abuse) Act 2016 which amends the Limitation Act 1969 to permit an action for damages in relation to child abuse to be brought at any time. The legislation encompasses recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse, that time limitations should be removed with retrospective effect, while also preserving the right to a fair trial. Chapter 14 of the Royal Commission’s report found that in pursuing civil litigation, limitation periods often are a significant and occasionally insurmountable barrier to survivors of child sexual abuse, therefore this legislation aims to assist survivors of abuse to pursue civil litigation.
The Victorian case demonstrates that despite the enactment of legislation in accordance with the Royal Commission’s recommendations to remove any limitation period, it still may be difficult to for a plaintiff to successfully bring a sexual abuse claim after a significant amount of time has elapsed.
Post by Ashleigh Gambera and Freida Stylianou