Stewart v Ma [2023] NSWSC 1046

Stewart v Ma [2023] NSWSC 1046

A fair trial of the common law claim was not possible because the alleged perpetrator and the plaintiff's mother were dead, neither had been told of the allegations before death, the defendant executor had no direct instructions or competing version of events with which to meet or test the plaintiff's allegations, the events were more than 45 years old, available witnesses and records could not meaningfully address whether the alleged abuse occurred, and the proceedings would be a one-sided trial manifestly unfair to the defendant. The proceedings were therefore permanently stayed.

Jurisdiction
Australia
Judgment Date
08 September 2023
Procedural Posture
Civil Proceedings Claiming Damages for Historical Sexual Assault; Application for Permanent Stay / Defendant's Motion for Permanent Stay Under S 67 of the Civil Procedure Act 2005 and the Court's Inherent Jurisdiction
Outcome
Permanent stay granted; plaintiff ordered to pay the defendant's costs.
Legal Topics
['permanent Stay of Proceedings' 'historical Sexual Abuse Claims' 'fair Trial' 'deceased Alleged Perpetrator' 'claim Against Deceased Estate' 'family Provision Proceedings']
['civil Procedure' 'torts' 'succession'] ['permanent Stay of Proceedings' 'historical Sexual Abuse Claims' 'fair Trial' 'deceased Alleged Perpetrator' 'claim Against Deceased Estate' 'family Provision Proceedings']

Case Brief

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Procedural Posture

Civil Proceedings Claiming Damages for Historical Sexual Assault; Application for Permanent Stay / Defendant's Motion for Permanent Stay Under S 67 of the Civil Procedure Act 2005 and the Court's Inherent Jurisdiction

Legal Issues

  1. 1 ['Whether the common law proceedings for damages for alleged historical sexual abuse should be permanently stayed because a fair trial was not possible.' 'Whether the death of the alleged perpetrator and other potential witnesses, the lapse of time, and the absence of prior notice of the allegations caused manifest unfairness to the defendant executor.' 'Whether the existence of related Succession Act 2006 (NSW) estate proceedings affected the appropriateness of a permanent stay of the common law claim.']

Ratio Decidendi

A fair trial of the common law claim was not possible because the alleged perpetrator and the plaintiff's mother were dead, neither had been told of the allegations before death, the defendant executor had no direct instructions or competing version of events with which to meet or test the plaintiff's allegations, the events were more than 45 years old, available witnesses and records could not meaningfully address whether the alleged abuse occurred, and the proceedings would be a one-sided trial manifestly unfair to the defendant. The proceedings were therefore permanently stayed.

Court Disposition

Permanent stay granted; plaintiff ordered to pay the defendant's costs.

Orders

  • ['Order that the proceedings 2021/251128 be, and hereby are, permanently stayed.' "Order the plaintiff to pay the defendant's costs."]