With thanks to Sonya Parsons for drawing my attention to RC v The Salvation Army (Western Australia) Property Trust [2021] WADC 117 (available on AUSTLII).
The court was required to consider a stay application in respect of a claim made for alleged abuse some 60 years earlier. No complaint of the abuse had been made while the alleged perpetrator was still alive. He had died some 8 years before the first complaint.
The Court held that in the particular circumstances of this case it was both necessary and appropriate to take the exceptional step of permanently staying the action.
The claim pleaded three causes of action against the defendant – in negligence, for breach of statutory duty under the Child Welfare Act 1947 (WA) and for vicarious liability. On that third cause of action it is noteworthy that the defendant did not admit that the alleged perpetrator was its employee. Rather, it said that he was an ordained minister of The Salvation Army, one assigned to the Home.
A full summary of the evidence is beyond the scope of this note. However the defendant had made various enquiries which were ultimately unhelpful. For example, the defendant had not been able to identify any other officers who worked at the Home between 1959 and 1962 who was still alive and able to provide any relevant information. The the contemporaneous documents the defendant has been able to obtain neither record allegations of sexual assault by the alleged perpetrator against the plaintiff being brought to the attention of the defendant, nor the existence of any investigation by the defendant into him.
Counsel for the defendant placed emphasis on three particular dimensions of prejudice, being the impossibility of the defendant to meaningfully: Cross-examine the plaintiff (section 7.2); Address the issue of its practices and procedures at the time, which is central to the issue of direct liability that is, breach of a non-delegable duty of care owed by it (section 7.3).; and to Address the issue of the formal role of Lt Swift verses what he actually did, which is central to the issue of vicarious liability (section 7.4).
The primary judge concluded at [150]:
The clear balance of the factors compels the conclusion that this is a case in which the exceptional step should be taken to grant a permanent stay. The defendant has satisfied the heavy onus on it to persuade the court that, in light of the matters raised, it is in the position where is it unable to meaningfully defend the Action and that it would be unjustifiably oppressive to require the defendant to meet the case brought against it by the plaintiff. This unfairness to the defendant outweighs the unfairness to the plaintiff in losing the opportunity to seek vindication and compensation of the proceedings are stayed.
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