Old claims

In the case of RC v The Salvation Army (Western Australia) Property Trust [2021] WADC 117. The Court in Australia considered allegations made by a claimant over 60 years after events in question.

In summary, RC alleged that between 1959 – 1960 he was placed at Nedlands Boys’ Home which was operated by the Salvation Army. Whilst there he was sexually abused by an officer at the home.

In response to the claim for damages the defendant sought an order to permanently stay the case on the basis that they had exhausted all reasonable inquiries. Given the age of the allegation it was unable to meaningfully defend the action. It argued that it would not be in the interests of justice of the case to continue.

The alleged perpetrator had died before the allegations came to light, other key witnesses were absent and key documentation unavailable. 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.

In response the plaintiff argued that a fair trial was still possible in light of the evidence that was available. The prejudice to the defendant did not warrant the exceptional power of the Court to grant a permanent stay.

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 defendant was unable to meaningfully defend the case. It was not in a position to determine whether or not to admit or deny any relevant fact on any informed basis.

Furthermore, the unfairness to the defendant outweighed the unfairness to the plaintiff. It added: “in order to have a fair trial of a civil action, a corporate defendant must have the ability to gather sufficient factual information decide what defence will be relied on and to make its version of facts known to the Court.”

Whilst this is a decision from another jurisdiction the English courts made a similar decision in the recent TVZ case and refused to exercise discretion to allow the claim to proceed out of time. The challenges for all associated with claims due to sexual abuse is very much a live issues and in England & Wales it remains to be seen what recommendations IICSA will make in their final report on this issue. It highlights the importance from a defendant’s perspective to whenever possible investigate claims at the earliest opportunity before the death of any key witnesses or the loss of key documentation.

Written by Nicholas Leigh at BLM (nicholas.leigh@blmlaw.com)

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