With thanks to Julie Somerville and Patrick Over for noting the decision in Grant v Bird [2021] VSC 380 (on AUSTLII), another permanent stay application.
The claimant recalled the alleged abuse some 20 years after it is alleged to have occurred (1980). By that stage the alleged perpetrator and potential eyewitness were both deceased (1985, 2010). There had been no other allegations of abuse or history of professional misconduct against the alleged perpetrator.
It was said that in about 2001 the plaintiff’s memories of the alleged abuse resurfaced during transcendental meditation, following which he accessed counselling support over a 12-month period (at [8]). In that regard the court later said at [51]:
The plaintiff may have an honest recollection of the alleged abuse. However, as the judgment of McHugh J in Longman demonstrates, that honest recollection may not be reliable. There are three reasons for this. First is the lapse of time between the alleged abuse and the plaintiff’s recall of the event in 2001, and the further lapse of time until trial. Second, the plaintiff’s recollection of an event which occurred when he was a child may be particularly susceptible to error. Third is the plaintiff’s recall of the alleged abuse during transcendental meditation after having no specific thoughts of it for about 20 years.
Proceedings were commenced in 2019. The cause of action against the Diocese was for negligence and vicarious liability rather than assault (at [24]).
The court held at [46] that the application raises the fundamental issues of whether a fair trial is possible, and whether allowing a trial to proceed would bring the administration of justice into disrepute. At [55]:
Prejudice to the defendant extends beyond the issue of whether the abuse occurred. The defendant will also face difficulties, because of the lapse of time, investigating and contesting at trial the allegations of breach of duty, the claim based on vicarious liability, causation of the plaintiff’s mental health conditions, and assessment of damages.
The application for a permanent stay was granted, with the Court ruling at [59]:
I conclude, having regard to the effect on the quality of justice and the reliability of memory of the lapse of time since the alleged abuse occurred, the death of Father O’Brien before he was confronted by the allegation of abuse, the death of the only potential witness Mr Powell, the vagueness of the date on which the abuse is alleged to have occurred and the absence of evidence of surrounding circumstances against which the allegation can be tested, that it is manifestly and unjustifiably unfair to require the defendant to meet the case brought against him by the plaintiff.