Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd

The Estate

1. It is convenient to commence with a description of the Estate of the late Mr Judd of which Mr Gorman and Mr Dunn are the Executors.
2. Mr Judd died on 2 May 2016, aged 77. Prior to his retirement he worked as a pilot for Qantas. The death certificate of the late Mr Judd records that he was never married and that he did not have any children.
3. His two Executors, both of whom are retired, deposed in the probate documents that they had known the late Mr Judd for many years and were close friends with him.
4. The informant for the purposes of the death certificate was his sister, Sandra Brown, who lives in Barrington in rural NSW. Mr Judd's cause of death was recorded as three conditions: they were, or were related to, leukaemia, lymphoma and tumour lysis syndrome. These are conditions broadly related to cancer.
5. According to the probate documents, the late Mr Judd owned a one-half share as tenant-in-common of an apartment in Brougham Street, Woolloomooloo. His fellow tenant-in-common is Mr Phillip Carmichael, to whom he left his share of the real estate, together with all of his furniture, domestic items and personalty.
6. The balance of his estate consisted of about $575,000 in various term deposit and other cash accounts. After providing a gift in total of $30,000 to his Executors, providing they fulfilled their obligations, the residue of the Estate, which included the balance of the cash, was to be invested for a period of five years during which the income was to be paid for the benefit of six named individuals in Fiji "… for their education, maintenance, benefit or advancement in life …". Five years after the late Mr Judd's death, the Executors were obliged by the Will to distribute equally the capital and remaining accrued interest amongst those six beneficiaries.
7. According to affidavit material filed in the McKnight proceedings, but tendered in these proceedings, Mr Carmichael, who is appropriately described as the principal beneficiary, described his occupation as being a Building Operations Supervisor. Little more is known of him.
8. Each of the six beneficiaries, who live in Fiji, also filed affidavits. Each of the beneficiaries are Fijian nationals whose financial circumstances are poor. The deceased had assisted them in various ways over time, either by providing food for them and their families, or paying for school fees or other education courses. Sometimes he assisted with the payment of medical expenses.
9. It cannot be doubted that each of these individual beneficiaries would continue to significantly benefit from the ongoing generosity of the late Mr Judd. Equally, if any of the damages claims succeeded against the Estate, then these individuals may not receive any legacy from the Estate at all, or else any legacy would be substantially diminished. In that way, each would be financially detrimentally affected by the unsuccessful defence of the individual proceedings.
10. None of the beneficiaries were, or ought to be, separately represented in the Executors' proceedings. The Executors in their submissions placed emphasis on the prejudice to the beneficiaries if their Summons was unsuccessful. In that way the interests of the beneficiaries were put before the Court.

Criminal Proceedings

1. The evidence revealed that on 3 December 2015, Mr Judd was arrested by Police and charged with three offences contrary to s 81 of the Crimes Act 1900, of assaulting a male, Mr McKnight, and committing an act of indecency on him during the 1978 calendar year. He was also charged with an offence contrary to s 79 of the Crimes Act of buggery on one occasion in a five year period between January 1978 and January 1983. The victim of this offence was Mr McKnight.
2. Mr McKnight gave a statement to Police about these events on 1 August 2015. Consequent upon that statement, Detective Senior Constable Gareth Burton applied for and obtained a surveillance device warrant from a Judge of this Court in September 2015.
3. On 15 October 2015, that warrant was acted upon, and a telephone conversation between Mr McKnight and Mr Judd was recorded. A transcript of that conversation was tendered in evidence on a confidential basis. A further recorded conversation took place between Mr McKnight and Mr Judd on 12 November 2015. In the period between these calls, Mr McKnight received a number of text messages from Mr Judd. A transcript of this further call and of those text messages was also tendered.
4. When arrested, Mr Judd instructed Mr Brian Wrench, a solicitor employed by Murphy's Lawyers, to act for him. According to Mr Wrench's evidence he met with Mr Judd and took instructions from him on three separate occasions. He kept no notes of his instructions or the contents of those conferences. I note that Mr Wrench is the solicitor on the record for the Executors, in each of these proceedings.
5. The first conference took place on 4 December 2015, in the cells beneath Central Local Court prior to Mr Judd being brought before the Court. At that time, as well, Mr Judd also faced charges with respect to sexual assault against another person who resided in Western Australia. No civil claim has been brought by that person. When Mr Wrench told him, in the course of this first conference about the allegations generally, as contained in the Police Statement of Facts, Mr Judd told Mr Wrench something similar to "… that he was not guilty… and that it was all consensual".
6. Mr Wrench understood from this conversation with Mr Judd that the basis upon which he (Mr Judd) said that he was not guilty of the offences relating to Mr Knight was: "… not that he had not had sex with Mr McKnight, but that the sex was consensual."
7. The second conference took place shortly after the first in Mr Wrench's office in the month of December 2015. Instructions to the same effect were obtained on that occasion.
8. The third and final conference occurred on 9 April 2016. By that time, the complete Police Brief had been served on Mr Wrench. In the context of a discussion on that occasion about whether Mr Judd had available to him a defence, being one of honest and reasonable belief about any victim being above 16 years of age, Mr Judd instructed Mr Wrench that he believed that to be the case. Although the position with respect to his earlier instructions may have been incomplete, Mr Wrench's evidence was that by the time of this third conference, when he had read the transcript of the recorded conversations between Mr Judd and Mr McKnight which formed part of the Police Brief, he had formed the view that Mr Judd had made admissions with respect to the fact the sexual conduct had taken place between himself and Mr McKnight over an extended period of time.
9. Prior to the meeting with Mr Judd on 9 April 2016, Mr Wrench had been informed by the Police officer in charge of the investigation that further charges would be brought against Mr Judd with respect to allegations of sexual assault upon Mr Channell and a Mr Gammage. However, it appears that whilst Mr Wrench informed Mr Judd that such charges were to be brought against him with respect to these two claimants, he did not take specific detailed instructions from him. The Police Brief of Evidence contained comprehensive statements from each of Mr Channell and Mr Gammage. Mr Wrench's best recollection was that Mr Judd: "… Gave a combination of instructions that was a little bit blurred in terms of either consensual or some incidents didn't happen in the way described."
10. The Police Brief of Evidence served on Mr Wrench was tendered in evidence in these proceedings. It consisted of over 350 pages of statements and documents and records the enquiries made by Police and their outcome. Whether this was the totality of Police enquiries is not revealed by the evidence.
11. The Police Brief revealed that Mr Judd had been charged on two previous occasions with indecent assault of a male. The first occasion was in December 1991, with the factual account of those events demonstrating significant similarities to the Police facts relating to the first charge against Mr McKnight.
12. The second occasion was in 1992, when the circumstances were similar to the other charges against Mr Judd involving Mr McKnight. The results of these charges, including whether Mr Judd pleaded guilty to them, were not put in evidence in these proceedings.
13. As well, the Police Brief included a typed and signed reference given by Mr Judd with respect to Mr McKnight. In it, he said: "I have known Chris McKnight for the last two years. He has worked on my property here at Mount Hunter during that time both after school and at weekends."
14. The reference is undated. By reference to Mr McKnight's statement to Police, this document was likely to have been prepared for him to use in 1980 or 1981.

Telephone Conversations and Text Messages

1. Mr McKnight, in his affidavit, recorded his recollection of the contents of the two lawfully intercepted telephone conversations with the late Mr Judd. In so doing, he did not say that he had read the transcripts of those conversations, or listened to a recording of them. His evidence was that the first conversation on 10 October 2015, was to the following effect: "Judd: Great. Yeah, well I look forward to catching up with you. God that's how many years? All I've been retired now what … 20 years or so. McKnight: Well, I started me apprenticeship in what, when I was 16 I think. I think I stopped working on your farm at 15. Judd: Yeah, yeah that sounds right. … McKnight: You know Bruno? Judd: Bruno? Yes. McKnight … He rang me up …. Judd: Yeah. McKnight … Did you show him those photos you took of me? Judd: He saw them at the farm, I haven't got them anymore. McKnight: Yeah. Judd: He spotted them at the farm. … Judd: No, but he saw the photos and then recognised you. McKnight: Yes. Judd: But they're, they've long been destroyed. I didn't save… McKnight: Yeah, well they were, they were instamatic Polaroids … Judd: Yeah, … God, talk about, it was it was a small world, yeah. You are a naughty boy, you were. You were giving him hell at school and… playing around with me. McKnight: Yeah. Judd: But we had some good times, I must admit. … Judd: :… I mean you were tall. McKnight: … I think I was, I think I was 13. Judd: And you were, you were 13 … McKnight: Yeah. Judd: I thought … you were 16 … when we met down in the park there … Yeah, and, and then you were tall, you were nearly 6 foot tall and … what I said how old you were … and you said 14, I nearly died. Then I found out, I thought well maybe you were nearly 15 … then you just said, oh, I'll be 14 in three months. I nearly died. You frightened the shit out of me … … Judd: … but you know, it worked out well, it was great. You did some good work at the farm, we certainly had a good time. … Judd: You grew up … pretty quickly … well you were never small. I mean you had a huge dick on you for your age. God love me, talk about sexy. My God … … Judd: You were just horny. But boy, were you ever horny. God, you were the horniest 14-year-old I think I've ever met. But you know, it was good fun."
2. The Executors have the capacity to determine whether this account of the conversation is accurate, or substantially accurate, by reference to the transcript prepared by NSW Police and served by the NSW Police as part of the brief prepared in respect of the criminal charges. That Police Brief is in the possession of the Executors and their lawyers. As well, the Executors have the statement of Mr McKnight prepared for his individual claim, and that which he gave to the Police.
3. An issue arose in these proceedings about whether the transcripts of these conversations may be admissible in evidence either in these proceedings or else in any trial of the individual claims. The transcripts were tendered on a confidential basis in these proceedings to enable a decision, if necessary, as to their admissibility.
4. The Executors submitted, by reference to the provisions of the Surveillance Devices Act 2007, that the transcripts were not admissible. The individual claimants submitted to the contrary, largely based on the provisions of the Government Information (Public Access) Act 2009.
5. Neither party submitted that the confidential tender of the transcripts in these proceedings was determinative of the issue before the Court on this Motion.
6. The Executors made no submission about prejudice relating to the transcripts of these telephone calls. If it were to be assumed that the Executors were correct and that the transcripts would not be admissible, there was no submission that this would elicit any prejudice to the Executors in their conduct of the defence of the individual claims on behalf of the Estate. If the Executors had, on the other hand, submitted that they would be prejudiced unless the transcripts were admissible in evidence, it may have been necessary for the Court to determine the issue of admissibility.
7. As no such submissions were made, this judgment can proceed on the basis that the transcripts have not been determined to be admissible, and that any argument about admissibility will occur at a trial if the individual claims proceed to a hearing.
8. I am further of the view that it is unnecessary for the Court to determine this question of admissibility of the contents of the transcript. That is because it is not the function of the Court on this application to determine whether or not the claims made by each individual claimant are proved, on the balance of probabilities, to be truthful and accurate. Rather, the issues before this Court, relevantly, relate to the knowledge of the Executors about the events, their capacity to adequately defend these proceedings and assessing the veracity and accuracy of the accounts given by the claimants of these events, in the context of determining the extent of prejudice to the Executors in the defence of the claims.
9. Although the transcript of the second conversation was tendered on a confidential basis, there was nothing contained in it which directly referred to the events the subject of the criminal proceedings. Accordingly, at this stage, it is of no direct relevance. The material in this transcript provided some general corroboration of various collateral facts, matters and circumstances surrounding Mr McKnight's claim, which do not seem to be in dispute, or likely to be in dispute.
10. The text messages between Mr Judd and Mr McKnight also contained nothing directly about the events the subject of the criminal charges. However, they clearly show that Mr Judd knew Mr McKnight and remembered him well, and they provided some general corroboration of the existence of their previous relationship.

Mr McKnight

1. The evidence of Mr McKnight was quite extensive. He was not the subject of cross examination. It is not appropriate in these proceedings to make any findings of fact about what actually occurred between Mr McKnight and Mr Judd (or between the other individual claimants and Mr Judd). However, it is appropriate to note that there appears to be evidence available to support the allegations made by Mr McKnight. They do not appear to be, nor was it submitted that, the allegations were far-fetched or fanciful. It was not submitted that the Court would not accept Mr McKnight's evidence for the purpose of the hearing of these proceedings.
2. Indeed, in the conversation referred to in [41] above, Mr Judd appears to largely admit that conduct of the general kind alleged took place, and that Mr Judd was well aware of Mr McKnight's age, and that he was attending school at the relevant time.
3. Mr McKnight's evidence provides an explanation for his failure to disclose the alleged abuse at any earlier time. He says in his affidavit of 27 October 2017, this: "4. The reason I did not report the abuse at the time or for many years after the abuse to place, was because I was a child at the time the abuse took place. I was too ashamed, embarrassed, scared and felt threatened by what Judd would do if I disclosed or reported the abuse. I felt embarrassed at being with another man and scared of what people would think. I felt shameful that in some way I was to blame for the abuse having taken place. 5. Judd made threats that he would tell my friends that I had had sexual intercourse with him that I was a homosexual. I did not want people to think I was a homosexual as I felt this would be a social stigma and I would be ostracised. I have never been attracted to men. I had fears that Judd would target my other siblings. 6. I also felt I could not disclose the abuse as Judd was an important person in the local community, who had money and held a position of respect."
4. Mr McKnight also explained that he first made enquiries about claiming compensation in 2015. However, it was not until about July 2016 that his solicitor advised him it was possible to commence proceedings against a deceased estate.
5. Mr McKnight claimed that as a consequence of the abuse at the hands of Mr Judd, he has suffered significant psychological harm, which led to an illicit drug addiction. He has had marital difficulties and difficulties with forming and keeping personal relationships. His work history has been poor. He has Hepatitis B and C infections as a consequence of his intravenous drug use and most likely his sexual abuse.
6. Associate Professor Carolyn Quadrio, Consultant Psychiatrist, has provided an expert report which, in general terms, provides significant support for Mr McKnight's claims about the consequences of his sexual abuse by Mr Judd.

Mr Channell

1. Mr Channell is now 52 years of age. Evidence about his position was put before the Court by his solicitor Mr Moore who, permissibly, swore an affidavit on information and belief.
2. Mr Channell's claim is that in the period between 1981 and 1984 on a number of occasions, he was indecently assaulted by Mr Judd. The evidence is that the assaults continued over that three-year period, approximately once per week, and took place primarily at Mr Judd's home at Lindenvale. As well as being indecently assaulted, the events would suggest that the offence of buggery was committed.
3. As well, during 1982, Mr Channell says that a number of indecent assaults and occasions of buggery occurred at the Camden Air League lecture room which was in a building at the Camden Airport.
4. The Police Brief contains significant material which demonstrates that Mr Judd was an officer of the Camden Air League, and that Mr Channell was a member of it at the time.
5. Mr Channell first came to receive advice with respect to the possibility of seeking compensation after he had been contacted by the Police in February 2016. This was a short time after Mr Judd had been arrested by the Police and charged with the various offences with respect to Mr McKnight.
6. Following upon that contact and the obtaining of legal advice from Mr Moore, proceedings were commenced against the Executors.

Mr Gammage

1. Mr Gammage is now 40. Evidence was put before the Court by an affidavit from his solicitor Mr Karp, which was sworn on information and belief.
2. Mr Gammage's claim is that he was sexually abused by Mr Judd on approximately six occasions over two months in 1993, when he was between 13 and 13½ years of age.
3. Mr Gammage was enrolled at Camden High School in 1992 at the age of 11, but was expelled the following year. He was subsequently enrolled (by a residential program that he attended for a period due to his behavioural issues) at Elderslie High School.
4. It is claimed that on a day in 1993, Mr Gammage and a friend named Shane absconded from school. They encountered Mr Judd in a local park, who then offered to drive the boys to his home (Lindenvale) so that they would not get caught by a teacher. They agreed and got into his car. Mr Judd handed Mr Gammage a business card identifying himself.
5. Mr Judd allegedly served Mr Gammage and Shane alcohol when back at Lindenvale and played them a pornographic film, before driving them back to Shane's home.
6. On another occasion, Mr Gammage absconded from the school library and called Mr Judd from a phone box. It is alleged that on this occasion, and on four other occasions over the next two months when Mr Gammage was absconding from school, Mr Judd perpetrated indecent and sexual assaults against him.
7. As noted earlier, Mr Gammage also claims against the State of NSW, the body legally liable for the conduct of Elderslie High School. Although that claim is not directly relevant to the matter at hand, it may be briefly noted that Mr Gammage claims that the State owed him a duty to take reasonable care to avoid the risk of harm to him during school hours through proper supervision and other measures, and that this duty was breached.

Enquiries by or on behalf of Executors

1. Mr Wrench gave evidence about enquiries which he had, and had not, made for the purposes of both the criminal and civil proceedings.
2. Insofar as the criminal proceedings were concerned, Mr Wrench made no enquiries at all, other than to take the general instructions to which I have earlier referred at [30]-[35]. His state of belief, whilst instructed in the criminal proceedings, which was wholly erroneous, was that consent was a defence to the charges providing that the victim was over 16 years of age or else, if the defendant had an honest and reasonable belief that the victim was over 16 years of age.
3. In fact, it was not until the passage of the Crimes (Amendment) Act 1984 (NSW), that sexual relationships between consenting males were decriminalised. At that time, the age for consent to be valid was 18 years. In 2003, the age for valid consent was reduced to 16 years by the Crimes Amendment (Sexual Offences) Act 2003 (NSW).
4. If Mr Judd had in fact engaged in the conduct of which Mr McKnight and the other two claimants gave evidence, then, at the time it occurred, such conduct was illegal. Even after sexual relationships between consenting adult males was decriminalised, Mr McKnight and the other claimants were below the age of 16. None of the material tendered in evidence on these proceedings would support any conclusion that Mr Judd believed that any of the three claimants was over the age of 16. On the contrary, the material tendered supported a clear conclusion that he knew that Mr McKnight, at least, was either 13 or 14 at the time of the relevant events. There is no reason to think that the position with the other claimants was any different.
5. The position with respect to any enquiries dealing with the civil claims for damages undertaken by Mr Wrench on the instructions of the Executors is not significantly different to that in the criminal proceedings. According to Mr Wrench, prior to the provision of judicial advice by a Judge of this Court to the Executors on 18 August 2017, no enquiries at all about the substance of the claims had been made, nor had any enquiries been made at all about any possible defences, or any possibly relevant factual material.
6. It is unclear why this is so unless an explanation is to be inferred from the contents of an affidavit affirmed by Mr Wrench on 13 September 2017 in which he said: "34 The allegations in the Statements of Claim filed in each of the claimant Proceedings appear to be based solely on evidence which will presumably be given by each plaintiff. 35 It appears on those Statements of Claim that the claimants are contending that the alleged incidents occurred (with limited exceptions) in a private setting where there were either no persons is present other than the Deceased and the plaintiffs, or there were persons present who are not able to be identified. 36. It is noted above, in each of the Claimant Proceedings, defences have been filed which do not admit any substantive allegation. 37 Due to the nature and content of the allegations in the Statements of Claim, the brief of evidence and speaking with both the deceased and the executors: (a) I am not aware of any witness that could be called to defend any of the Claimant Proceedings; (b) I am not aware of any document which could be tendered in defence of any of the Claimant Proceedings; (c) I am not aware of any person would be familiar with the matters which are the subject of the allegations made in the Claimant Proceedings."
7. In cross examination Mr Wrench gave evidence to the following effect: 1. he had not sought instructions from Mr Gorman, one of the Executors, as to the factual basis for Mr Gorman's assertion in a letter to Conditsis & Co, the solicitors for Mr McKnight, that any sexual activity between the late Mr Judd, and Mr McKnight "… would have been consensual and in no way would it go to abuse". However he said he had discussed with Mr Gorman the issue of consent generally; 2. he had spoken to Mr Gorman and Mr Dunn, the Executors, and with Mr Carmichael, the principal beneficiary, about whether they knew the identities of any of the people referred to in Mr McKnight's Police statement as attending parties at Mr Judd's farm, during which time Mr McKnight was sexually assaulted by Mr Judd. His evidence was that he had asked them whether they knew anyone who may be able to assist; 3. Mr Gorman had told him that he had spoken to Mr Judd prior to his death about the criminal proceedings, but Mr Wrench did not ask Mr Gorman for the details what was said in the course of that conversation; 4. whilst he had spoken to Mr Carmichael and asked him whether he had had any conversations with Mr Judd about the substance of the allegations in the criminal proceedings, he had not asked him for any specifics about what Mr Judd had said; 5. he had not spoken to any member of Mr Judd's family about the allegations against Mr Judd; and 6. he had not made inquiries about the whereabouts of two individuals identified in Mr Channell's statement to police, or either of the two identified fellow school students who had been photographed, apparently by Mr Judd.
8. The Police Brief, which was served during the criminal proceedings and prior to Mr Judd's death, contained a series of statements by individuals interviewed by Police who were familiar with either Mr McKnight or one of the other claimants. They gave to Police accounts of various incidents and discussed a range of facts and circumstances which tended to corroborate the accounts given by the claimants. Whether these accounts are complete accounts or not is not yet clear, as none of these individuals have been cross‑examined. Equally, Mr Wrench did not attempt to make contact with any of these individuals for the purpose of speaking with them so as to explore whether the accounts given by Mr McKnight and the other two claimants were, or were likely to be, accurate.
9. Whilst I accept that the home addresses of these witnesses are not contained in the statements taken by Police, those addresses were known to Police and there was nothing to prevent Mr Wrench from making inquiries of Police with a view to making contact with those witnesses. His evidence did not suggest that he had done anything to establish the whereabouts of these witnesses or to seek to discuss the various events with them. The mere fact that statements from these individuals were contained in the Police Brief did not prevent Mr Wrench contacting them during Mr Judd's lifetime, nor even after his death.
10. As well, contained within a number of the claimants' statements were references to particular individuals who were said to have been at Mr Judd's house on occasions when sexual assaults took place. Some of the descriptions are unusual. Mr Wrench did not enquire of the Executors, or Mr Carmichael, or of anyone else, about whether such individuals (capable of being identified, although not by name) were known to them, or whether they had heard of them and knew who may be able to help with any enquiries. One example of such a person is Mr Gammage's fellow school student, Shane.
11. The photographs and records of the Air League at Camden which formed a part of the Police Brief also contain the names of a number of individuals who were in positions of responsibility during camps and other Air League meetings at the Camden Airport. A number of the sexual assaults were said to have occurred either at the camps, or else at parties at Mr Judd's home, held during the time when the camps were being held. One of the witnesses, whose lengthy statement was in the Police Brief, identified an individual by name who was present at those camps and whose behaviour was described in a way which would make it possible, if not likely, that he knew Mr Judd well and knew of his sexual activities with younger males. No enquiry has been made of that named individual.
12. Whilst I accept that the death of Mr Judd prior to the commencement of any of the civil proceedings has deprived the Executors of the most obvious and ready source of information about the events the subject of the three claims, the desultory nature of the enquiries actually made by, and having regard to the many potential enquiries which could have been made arising from the material in the Police Brief, the Executors and Mr Carmichael and which were not made, it seems to me that very little, if any, weight can be put on the assertion of Mr Wrench in evidence (to which references been made above at [75]) that there was simply no enquiry which can be made on behalf of the Executors to assist in the defence of the proceedings.
13. The position, as it seems to me, is simply this that such enquiries as were made by Mr Wrench whilst Mr Judd was alive, revealed that Mr Judd largely accepted that the events described by Mr McKnight had taken place but said that they were consensual. With respect to other claimants who gave similar accounts, broadly speaking he agreed that the conduct had taken place, but again sought to defend it on the basis that it was consensual, or else that he reasonably believed that it was lawful.
14. After Mr Judd's death, only the most perfunctory of enquiries were made. No exploration has been undertaken by Mr Wrench, who seems to me to have preferred to take the approach that, in the absence of Mr Judd, nothing useful could be obtained to counteract the claims of the three claimants. It will be apparent from my earlier remarks in discussing these issues, that I do not accept that this is so.
15. At the very least, the Executors were in a position to test the claims which were made against known facts by examining them for inconsistency. The position is that the solicitor for the Executors has not attempted to ascertain any of the known facts or corroborative material which would assist in the defence of the claim, in circumstances where enquiries may have been productive.

Removal of Limitation Period

1. Having regard to the time which is passed since the events the subject of these suits by the claimants occurred, ordinarily they would not have been able to bring these claims for damages because the relevant limitation period would have expired.
2. However, in 2016 this position was changed by the enactment of the Limitation Amendment (Child Abuse) Act 2016 which took effect from 17 March 2016. It introduced s 6A of the Limitation Act 1969, which is in the following form: "6A No limitation period for child abuse actions (1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act. (2) In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age: (a) sexual abuse, (b) serious physical abuse, (c) any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse). (3) To remove doubt, connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age. (4) This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise. (5) This section extends to the following causes of action: (a) a cause of action that arises under the Compensation to Relatives Act 1897, (b) a cause of action that survives on the death of a person for the benefit of the person's estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944. (6) This section does not limit: (a) any inherent jurisdiction, implied jurisdiction or statutory jurisdiction of a court, or (b) any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction."
3. The Parliament inserted a note at the end of s 6A to the following effect: "Note for example, this section does not limit a court's power to summarily dismiss or permanently stay proceedings when a lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible."
4. The Note does not form part of the Act. However, it does meet the description of extrinsic material which is available to be used in the interpretation of an Act or a statutory rule in accordance with s 34 of the Interpretation Act 1987.
5. Clause 9 of Schedule 1 of the Limitation Amendment (Child Abuse) Act provides that s 6A extends to a cause of action that arose before the commencement of that section. It further provides that s 6A applies "… whether or not any limitation period previously applying to the cause of action has expired".
6. This clause makes it clear that Parliament intended s 6A to have retrospective effect. Section 6A applies to the three individual claims so that no limitation period exists. The Executors accepted that this was so.
7. The circumstances for the introduction of the Limitation Amendment (Child Abuse) Act as a Bill were adequately described by the Attorney-General in her Second Reading Speech. She described it as a response to recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse, which took place between January 2013 and December 2017. The Bill had followed community consultation.
8. It responded to a recommendation in one of the Royal Commission's reports, which was to the effect that State and Territory governments legislate to remove any limitation periods that applied to a claim for damages resulting from child sexual abuse; that such amendment should be retrospective in effect and apply regardless of whether or not a claim was subject to a limitation period in the past; and that the amendment should expressly preserve the Court's jurisdiction and powers to stay proceedings.
9. The Attorney-General in her Second Reading Speech said this: "It is now widely understood that, due to the injuries inflicted on them by their abusers, survivors of sexual and other child abuse often take decades to understand and act on the harm arising from the abuse. The Royal Commission's research has revealed that the average time to disclose childhood sexual abuse is around 22 years. … Many survivors find the statutory period within which to commence a claim for damages has passed by the time they are able to commence proceedings … In essence, statutory limitation periods often mean that survivors of child abuse are unable to claim any compensation for harm done."
10. The Attorney-General went on to address the key provisions of the Bill. In so doing, she said: "… This Bill will treat all child abuse claims equally, regardless of when the abuse occurred or who perpetrated the abuse. The Bill removes the existing time limitations on commencing a child abuse action, including the 'ultimate bar', which is a statutory provision that prevents claims more than 30 years after the abuse occurred. … Importantly, the Bill applies retrospectively, meaning that there will be no limitation period for claims regardless of when the abuse occurred. The transitional provisions balance the retrospective nature of the amendments with the fundamental legal principle of res judicata, meaning the matter may not generally be relitigated once it has been judged on the merits. … The amendments to provide for some cases to be reopened, including cases which have commenced but which have not been determined or settled whether limitation period has already expired; where judgement has been given on the basis of the action is statute barred …; and where a survivor has already commenced proceedings against a former solicitor for professional negligence arising from the failure to provide accurate advice in relation limitation period that applies to the abuse claim. It is a fundamental tenet of the rule of law that all parties receive a fair trial. These amendments preserve the existing powers of the Court to safeguard the right to a fair trial. They do not restrict a Court from dismissing or staying proceedings if a fair trial is not possible".
11. Accordingly, as the plaintiffs' claims are prima facie not statute-barred, no issue arises of the kind which arose in Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134 or Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. In the latter case, the High Court placed weight on the rationale of limitation periods as the primary means of reducing any presumptive prejudice to defendants in facing a "stale claim" due to a plaintiff's delay in commencing proceedings.
12. The Parliament's intention in enacting s 6A with retrospective effect means that any principle of general application deriving from the existence of a fixed limitation period can only be given limited weight when considering all factors relevant to the determination of whether the Court ought order a permanent stay.

Legal Principles

1. The Court is being asked to stay or dismiss these proceedings brought by the claimants. It has the power so to do, either by statute or because of its inherent power to prevent an abuse of process.
2. Section 67 the Civil Procedure Act 2005 provides: "67 Stay of proceedings Subject to rules of Court, the Court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day."
3. At common law, the right of a civil court to stay proceedings on the ground that they are an abuse of its process was described by McHugh JA in Herron v McGregor (1986) 6 NSWLR 246 at 250 as being "beyond controversy". The power is an inherent one so that the Court may, within its jurisdiction, "protect itself from the abuse of its own procedure": Metropolitan Bank Limited v Pooley (1885) 10 App Cas 210 at 214 per Lord Selbourne LC.
4. At 251 in Herron, McHugh JA (with whom Street CJ and Priestley JA agreed) said: "In the absence of a contrary decision of the High Court on the point I think that this Court, as a superior court of justice, has inherent power to prevent an abuse of procedure in instituting or continuing proceedings in both civil and criminal cases .… I am strongly of the opinion that not only has this Court the inherent power to stay its own civil and criminal proceedings for abuse of process but its general supervisory and protective power extends to protecting inferior courts and tribunals from abuse of their procedure in relation to civil, criminal and disciplinary matters."
5. In discussing the effects of delay in Herron, McHugh JA made these remarks at 253: "The law has also long recognised that the inherent power of the civil courts to prevent an abuse of their process extends to staying actions where, by reason of inordinate and inexcusable delay or the contumelious conduct of the plaintiff or his legal advisors after the institution of proceedings, the defendant suffers prejudice: Birkett v James [1978] AC 297, Alexander v Cambridge Credit Corporation (Court of Appeal, 30 May 86, unreported)."
6. His Honour regarded it as a different question as to whether delay in commencing proceedings can amount to an abuse of process. In considering that issue, his Honour said at 253: "The limitation period represents the legislature's judgment as to what the public interest requires after taking into account the relevant factors including the prejudice which delay may create. … Nevertheless, in my opinion the courts have power to stay an action, though brought within the relevant limitation period or even though not governed by such a period, if the conduct of the plaintiff or prosecutor is oppressive to the defendant or accused person."
7. His Honour went on to deal with the specific proceeding before the Court of Appeal, which was a disciplinary proceeding over which the Court of Appeal was being asked to exercise a supervisory jurisdiction. With respect to such a proceeding, his Honour made these comments at 254-255, which would seem to be apposite in the present case: "Since no time limit has been laid down under the Act, a complaint may be made at any time unless the institution of the proceedings in the circumstances is oppressive and an abuse of process. Nevertheless, while the Act contains no time limitation for lodging a complaint, it does not follow that the claimant, with knowledge of the facts, can stand by and allow time to pass. The public interest requires the complaints be lodged and dealt with as expeditiously as possible … A person with reasonable grounds for complaint, therefore, should pursue it with reasonable diligence. Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can which can never be proved affirmatively. As the United States Supreme Court said in Barker v Wingo (at 532) 'What has been forgotten can rarely be shown'. In some cases delay makes it simply impossible for justice to be done. … In R v Lawrence [1982] AC 510 at 517, Lord Hailsham LC pointed out that 'Where there is delay the whole quality of justice deteriorates'. … Because delay creates prejudice and injustice, the policy of the law for over 300 years has been to fix definite time limits for prosecuting civil claims (usually a maximum of six years) and for 150 years to fix definite time limits for prosecuting summary criminal offences. Equity, though not bound by the common-law limitations, applied them by analogy. The reasons which have impelled the legislature to fix time limits in civil and many criminal cases are equally applicable to disciplinary proceedings. When a number of years has elapsed since the conduct occurred, the lodging of a complaint prima facie needs justification although, of course, there can be no fixed rule."
8. After the decision of the New South Wales Court of Appeal in Herron, the High Court of Australia considered the question of the right to a speedy trial and when delay could amount to abuse of process. In Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, Mason CJ at 25 noted that it was clear that Australian courts possessed an inherent jurisdiction to stay proceedings which amounted to an abuse of process. He went on to say this: "… a court also possesses the power to control and supervise proceedings brought in its jurisdiction, and that power includes power to take appropriate action to prevent injustice: see Hamilton v Oades (1989) 63 ALJR 352 at 358; 85 ALR 1 at 11. But it may be that 'injustice' in this context has a limited meaning, although the power is not to be confined to closed categories … In particular, the criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context. However, for the purpose of applying the principles of abuse of process, the distinction to be drawn between criminal and civil proceedings is not a rigid and inflexible one. It is the nature of the proceedings, not their formal classification, that is important …"
9. Although considering criminal proceedings, at 31 Mason CJ said: "… the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. …"
10. The High Court considered the issue of abuse of process in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509. The Court said at 519: "It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it."
11. At 519 the Court also considered the difference between a trial in which an abuse of process was alleged based upon the fact that the proceedings were instituted and maintained for an improper purpose, and those which were governed by considerations of delay and prejudice. In the latter case, the Court held that it was necessary to determine whether a fair trial could be held. That was not so in the case of an improper purpose.
12. The High Court revisited the question of delay in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378. Again this was a matter concerned with the exercise of a professional disciplinary regime. At 392-393, Mason CJ, Deane and Dawson JJ said: "The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail … ."
13. The High Court accepted that the following description by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; (1982) AC 529, at 536 was correct. Lord Diplock said: "… the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of the procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people."
14. The High Court considered issues relating to delay in the context of a civil claim in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256. At 280 at [65] the plurality (Gleeson CJ, Gummow, Hayne and Crennan JJ) said: "The 'right' of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process."
15. It further said at 281 at [69]: "The descriptions, … do not provide any ground for a requirement of oppressive conduct by the plaintiff. Rather, as in the circumstances of the present case, attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time."
16. Later in the judgment at 324, at [228] Callinan J said: "In an adversarial system under the most ideal of circumstances so far as time limits are concerned, a court is often obliged to make decisions on incomplete facts. Parties are not bound to bring to the attention of the court facts which are detrimental to their cases. Sometimes, by reason of the absence, or sudden death of a witness or a witness' departure, or for any number of other reasons, key facts cannot be established. The courts have to do the best they can on the material before them and, in doing so, may make allowances for the circumstances in which each of the parties finds himself or herself. As Gleeson CJ, Gummow and Callinan JJ said in Vetter v Lake Macquarie City Council …, a case in which there was a paucity of relevant material: '… As long ago as 1774, Lord Mansfield said … that all evidence is to be weighed according to the proof which it is in the power of one side to have produced and the power of the other to have contradicted'."
17. The most recent decision which deals with not dissimilar circumstances to the present proceedings is that of the Court of Appeal of the Supreme Court of Victoria in Connellan v Murphy [2017] VSCA 116 ("Connellan"). There the Court of Appeal was called upon to consider a claim for damages made by a plaintiff against a defendant arising from a sexual assault said to have occurred on two occasions at a time about 50 years prior to the Court of Appeal decision. At the time of the alleged assault the plaintiff was six or seven years old, and the defendant who was the alleged perpetrator was 13 or 14. The defendant denied the plaintiff's allegations completely.
18. The plaintiff was able to bring the proceedings because there had been an amendment to the Victorian equivalent to the Limitation Act, just as in New South Wales, which removed any limitation period in cases of child sexual abuse.
19. The defendant applied for a permanent stay of the plaintiff's proceeding on the ground that the proceeding was an abuse of process and/or because he was irretrievably prejudiced by reason of the delay in the proceeding being brought.
20. The primary Judge dismissed the defendant's application. The Court of Appeal upheld the defendant's appeal and ordered that there be a permanent stay of the proceedings.
21. At [54] the Court said: "In determining whether a proceeding should be stayed as an abuse of process, the authorities to which we have already referred disclose the following propositions: (1) In order to justify the grant of a stay, a defendant bears a heavy onus. A stay is ordinarily only granted in exceptional circumstances, because it effectively brings to an end litigation without adjudication. (2) The categories of abuse of process are not closed. (3) In particular, the concept of an abuse of process is not confined to cases in which, if the action were to proceed, the defendant would not receive a fair trial. (4) The fundamental test is whether, in the circumstances, the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people.
22. At [55] the Court said: "The primary judge was required to determine whether, having regard to all the circumstances (including the seriousness and importance of the issues in dispute), it would be manifestly unfair, or would otherwise bring the administration of justice into disrepute, to permit the plaintiff's proceeding to proceed."
23. The Court of Appeal expressed its conclusion at [65] in this way: "In the present case, and in light of the specific facts of this case, we are of the view that it would be plainly unjust to permit the plaintiff's proceeding to continue. The defendant cannot realistically be expected to defend the cause of action that is alleged to have accrued almost five decades ago in circumstances where so little is known about the surrounding circumstances and facts, and all of the principal witnesses who were adults at the time are now dead. A trial of the plaintiff's allegations would be one that proceeded on a very unsure footing with mere scraps of evidence, the reliability of which must seriously be doubted, being tendered and relied upon. As genuine as the plaintiff's recollections might be, it would be unjustifiably burdensome to require the defendant to now attempt to defend allegations made against him as a child so many years ago."
24. There are some features of Connellan which are different from those in the present proceedings. The principal amongst those is that the allegations are alleged to have occurred when the plaintiff was six or seven years old and the defendant was 13 or 14 years old and, accordingly, it was a matter of comparison of childhood memories. The second difference is that here that perpetrator is dead, and it is his Estate which is being sued, whereas in Connellan, the perpetrator and the victim who were most directly concerned with the events were alive, but other adult witnesses who might have been able to give relevant evidence were dead.

Discernment

1. Any decision of the kind being sought by the Executors calls for an evaluation of the nature of the trial which may be held, and then the exercise of a discretion in determining whether to make the orders sought.
2. Whether in civil or criminal proceedings, in considering whether to order a permanent stay, the High Court has cautioned that such relief is only to be granted in the most exceptional of circumstances. That is because it prevents the adjudication of a claim at a trial.
3. Accordingly, the person claiming the stay has a heavy onus to discharge in persuading the Court to grant relief.
4. Another matter which is to be weighed carefully in considering the nature of the trial which is in prospect, is that the mere absence of documentary evidence, or the absence of a witness through death or incapacity, does not have the automatic consequence that a trial will be unfair, or that a permanent stay should be granted. Just because a court will be asked to determine proceedings with incomplete facts does not make the trial thereby unfair: R v Edwards [2009] HCA 20; (2009) 255 ALR 399; R v McCarthy (NSWCCA 12 August 1994, unrep) at [12] per Gleeson CJ; R v Stringer (2000) 116 A Crim R 198 per Grove J at [200].
5. Here the Estate relies upon a combination of delay between the events occurring and the commencement of proceedings, and the inability of the Estate to fully defend the proceedings because of Mr Judd's death before proceedings commenced.
6. I am not satisfied that any hearing of these proceedings would be manifestly unfair to the Estate or would otherwise bring the administration of justice into disrepute among right-thinking people.
7. My reasons for this conclusion are: 1. the claimant in each case is alive, in reasonably good health and is able to be fully cross-examined and challenged on his account of the events and all of the surrounding circumstances; 2. the credibility of each of the claimants is able to be challenged having regard to their criminal histories (if any) and other material which may be reasonably available about their conduct and reputations; 3. any previous histories given to medical practitioners, or statements made to Police officers, or else by way of complaints to other witnesses when first made, can be examined for consistency and challenged where appropriate. The individuals to whom these histories have been given, statements or complaints that have been made are, so far as the evidence before this Court shows, all alive and available to be cross‑examined; 4. some material is available which reveals the account given by the late Mr Judd about his relationship with Mr McKnight. This material, including his instructions to his solicitor, Mr Wrench, after being charged, and when confronted with the contents of the Police Brief, and his recorded telephone discussions with Mr McKnight which are able to be considered by the Executors for the purpose of assessing whether they are internally consistent, and thereby provide some material to the Estate for it to consider in determining its approach to the defence of the individual claims. The instructions to Mr Wrench also provides some corroboration of Mr McKnight's claim; and 5. there are still in existence buildings at which the events are said to have occurred, and documents obtained from third parties against which the accounts of the claimants can be checked and either confirmed, challenged or disproved. The late Mr Judd's house is still in existence. Any description given by any claimant of the house and its features can be readily checked. Descriptions have been given of motor vehicles said to have been owned and driven by the late Mr Judd which can be checked with Roads and Maritime Services records. Some records, including photographs, from the Camden ATC still exist and can be examined for consistency with the claimants' versions.
8. In addition to these matters, and as I have earlier indicated, I do not accept the assertion of the solicitor for the Estate that there are no enquiries or investigations which the Estate can make to assist in the defence of these civil proceedings. On the contrary, I have concluded that the Estate has made only the most desultory of enquiries and investigations and that further investigations are open to be made by it, if the Estate so chooses.
9. What is in prospect for the hearings of the claims of the claimants is obviously a less than perfect trial. Mr Judd, the alleged perpetrator, is dead. Only a partial account of his conduct was obtained from him before he died. However, I am satisfied that the trial will not be an unfair one. There is no fundamental defect of the trial process or other circumstances which would amount to an abuse of process.
10. The delay which is in the order of a maximum of 40 years and at least as long as 25 years, is a lengthy period of a kind which calls for anxious consideration with respect to whether it imposes such a burden on the Estate as would properly be regarded as making the trial an instrument of injustice or unfairness. The effect of delay identified by the Estate is that the defence of the proceedings will be significantly adversely affected by the death of the late Mr Judd and his inability to provide any instructions as to the detail of what the claimants allege.
11. As I have already explained, I am not satisfied that this will lead to an unfair trial, although the trial may be conducted on the basis of incomplete factual material. As well, the Estate contends that the delay means that it is now more difficult to identify witnesses who may be able to give an account of what occurred. I have concluded that whilst some effect on their investigations has been experienced, the evidence in this respect does not enable a conclusion to be drawn that there are no witnesses who may be available to be spoken to.
12. Shortly put, the period of delay is such as to have made it more difficult, but not impossible, for the Estate to defend the proceedings compared with the position had the late Mr Judd been available to provide instructions.
13. Accordingly, I have concluded that the Estate has not established that any of the claims of the claimants are of a kind that would entitle it to the relief claimed.
14. But there are other factors relevant to the exercise of discretion which, when considered with my evaluation of the nature of the trial, would tell against the grant of the relief.
15. It is necessary to keep firmly in mind as an important factor, the public interest in permitting claims for damages for sexual abuse of children or juveniles to be brought at any time. That public interest has been expressed by the Parliament in the legislative amendments which provide that any previous limitation period has been removed. Such is the extent of the public interest in having claims of this kind brought forward, that the removal of the limitation period was intentionally made retrospective by the Parliament.
16. This public interest element in an application for a permanent stay of proceedings in a historical child sexual abuse matter was considered by the Court of Criminal Appeal of the Supreme Court of South Australia in R v Jacobi [2012] SASCFC 115; (2012) 114 SASR 227, albeit in a criminal context. In that case, there had been a delay of 36 years between the first alleged offence and this trial date, and the perpetrator was elderly and infirm. The Court affirmed the trial Judge's decision to refuse to grant a permanent stay.
17. Nicholson J at 256 made remarks that may be equally apposite in a civil context involving claims of the present kind: "There also is a public interest in claimants, concerning such matters, having the opportunity to present their allegations in court so as to seek public vindication. As a matter of justice, it is important that accusers have the right to have their allegations presented, tested and ultimately, where appropriate, accepted in an open court … where crimes of sexual abuse are concerned there may well be a significant therapeutic benefit and a sense of closure for the claimants concerned which, of itself, can be in the public interest."
18. A further relevant factor to be considered as a matter of discretion is that it was not suggested that the delay in bringing the proceedings has been the consequence of any intentional conduct on the part of the claimants or their lawyers. It was not suggested, for example, that the claimants, knowing that the late Mr Judd was unwell, chose to deliberately withhold the commencement of civil proceedings until after his death. Rather, the conclusion that I have reached is that the claimants commenced proceedings at a time when they first reasonably felt able so to do. In those circumstances, their entitlement to have those claims heard and determined needs to be given real weight.
19. Having regard to the high hurdle which the Estate faces in seeking to persuade the Court that the relief which it seeks should be granted, and the need for exceptional circumstances to be demonstrated, I am not satisfied that any trial of any of the claims of the claimants would be unfair to the Estate or would otherwise bring the administration of justice into disrepute. I am accordingly wholly unpersuaded that the Estate has demonstrated that the Court ought grant the orders sought by it.
20. The Estate's proceedings must be dismissed. There is no reason why costs should not follow the event.

Orders

1. I make the following orders: 1. Proceedings 2017/278663, commenced by Summons filed 13 September 2017 are dismissed. 2. The plaintiffs, as Executors of the Estate of the late Roy Donald Judd, are to pay the costs of the proceedings.

Amendments 08 October 2018 - Minor typographical amendments: [100], [103], [104], [112], [119], [121]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 October 2018