Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776

Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776

Because more than 70 years had elapsed since the alleged abuse, the alleged perpetrator had been dead for over 60 years, there was no evidence that he had ever been confronted with the plaintiff's allegations, no documents existed bearing on the allegations, and no available inquiry could place the Trustees in a position to contest or admit liability on an informed basis, continuation of the proceedings would be manifestly unfair and an abuse of process. The evidence concerning Father Donnelly did not overcome that prejudice because it did not provide material enabling the Trustees to meet the plaintiff's case.

Jurisdiction
Australia
Judgment Date
13 December 2019
Procedural Posture
Civil Proceedings for Damages Alleging Negligence and Vicarious Liability for Historical Child Sexual Abuse / Defendant's Notice of Motion for a Permanent Stay of Proceedings
Outcome
Permanent stay granted; each party to pay their own costs; defendant's notice of motion otherwise dismissed.
Legal Topics
['permanent Stay of Proceedings' 'fair Trial' 'abuse of Process' 'historical Sexual Abuse Claims' 'effect of Delay on Evidence' 'hearsay and Non Hearsay Use of Evidence']
['civil Procedure' 'personal Injury' 'institutional Child Sexual Abuse' 'limitation of Actions' 'evidence'] ['permanent Stay of Proceedings' 'fair Trial' 'abuse of Process' 'historical Sexual Abuse Claims' 'effect of Delay on Evidence' 'hearsay and Non Hearsay Use of Evidence']

Case Brief

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Procedural Posture

Civil Proceedings for Damages Alleging Negligence and Vicarious Liability for Historical Child Sexual Abuse / Defendant's Notice of Motion for a Permanent Stay of Proceedings

Legal Issues

  1. 1 ['Whether the proceedings should be permanently stayed because the passage of more than 70 years since the alleged sexual abuse made a fair trial impossible.' "Whether the evidence of conversations with Father Donnelly affected the assessment of whether the Trustees could meet the plaintiff's claim and receive a fair trial." "Whether alleged delay by the Trustees in seeking a stay should affect the exercise of the Court's power or the costs order."]

Ratio Decidendi

Because more than 70 years had elapsed since the alleged abuse, the alleged perpetrator had been dead for over 60 years, there was no evidence that he had ever been confronted with the plaintiff's allegations, no documents existed bearing on the allegations, and no available inquiry could place the Trustees in a position to contest or admit liability on an informed basis, continuation of the proceedings would be manifestly unfair and an abuse of process. The evidence concerning Father Donnelly did not overcome that prejudice because it did not provide material enabling the Trustees to meet the plaintiff's case.

Court Disposition

Permanent stay granted; each party to pay their own costs; defendant's notice of motion otherwise dismissed.

Orders

  • ['Pursuant to s 67 of the Civil Procedure Act 2005, the proceedings be permanently stayed.' "Each party pay their own costs of the proceedings, including their costs of the defendant's notice of motion filed 26 June 2019." "The defendant's notice of motion filed 26 June 2019 otherwise be dismissed."]