Gorman v McKnight

[This headnote is not to be read as part of the judgment] The executors of the Estate of the late Mr Roy Donald Judd (the Estate) had sought the permanent stay or dismissal of three sets of proceedings which had been commenced separately in the Supreme Court of New South Wales in which damages were sought consequent upon alleged historic sexual assaults by Mr Judd on each of the plaintiffs, Messrs McKnight, Channell and Gammage. They were respectively aged 13-16, 14-17 and 15 years of age at the time of the alleged assaults. On 1 August 2015, Mr McKnight gave a statement to the police detailing his allegations against Mr Judd, following which the police applied for and obtained a surveillance device warrant. A telephone conversation between Mr McKnight and Mr Judd was recorded, demonstrating that Mr Judd knew that Mr McKnight was only 14 years at the time of the first alleged assault. Mr Judd was arrested on 3 December 2015 and charged with multiple offences contrary to s 81 of the Crimes Act 1900 (NSW). Mr Judd was subsequently also charged with offences in respect of Messrs Gammage and Channell. Mr Judd died on 2 May 2016 at the age of 77, with each set of proceedings commenced separately thereafter. Defences to each set of proceedings have been filed, principally comprising non-admissions. Mr Judd's solicitor, who was also the solicitor for the Estate, gave evidence about certain conferences he had with Mr Judd after he had been charged and was cross-examined about these, and also about what inquiries had been made about the allegations in the proceedings. The primary judge refused to permanently stay or dismiss any of the three sets of proceedings, concluding that the Estate had failed to discharge the heavy onus which it bore in seeking a permanent stay of proceedings. His Honour was not satisfied that any hearing of the underlying proceedings would be "manifestly unfair" to the Estate, and concluded that only the most desultory of enquiries had thus far been made by the Estate to assist in its defence. The executors sought leave to appeal to the Court of Appeal. The principal issues on the application were: 1. Whether the primary judge erred in his finding that Mr Judd had largely accepted the events described by each claimant had taken place, but claimed that they were either consensual or otherwise lawful; 2. Whether the primary judge erred in treating his inquiry as to whether a stay should be granted as involving a balancing process and, in particular, in taking into account the public interest in permitting claims for sexual abuse of children to be brought at any time; 3. Whether the primary judge erred in his findings relating to the extent of the inquiries performed by the Estate's solicitor to investigate the plaintiffs' allegations; 4. Whether the primary judge erred in his ultimate decision, and should instead have found that there could not be a fair trial in all of the circumstances. The Court held (Bell P, Payne JA and Emmett AJA agreeing) granting leave to appeal but dismissing the appeal with costs: 1. With respect to the applicant's challenge to the primary judge's alleged error in fact finding, the Court held that there was no valid basis for criticising the primary judge's observations, as such findings were supported by the evidence, including the cross-examination of the Estate's solicitor: [58]-[64] (Bell P); [91] (Payne JA); [99] (Emmett AJA). 2. With respect to the applicant's challenge to the primary judge's alleged error of principle, the Court held that no error of principle was established. Nothing in the primary judge's reasons involved his Honour applying different principles to historical sexual assault cases compared to other cases for permanent stays of proceedings: [65]-[70] (Bell P); [91] (Payne JA); [99] (Emmett AJA). 3. With respect to the primary judge's criticisms of the inquiries made by the Estate's solicitor in relation to the allegations, the Court held that such criticisms were valid, as there were a number of inquiries which the Estate's solicitor could have, but had not made: [55] (Bell P); [91] (Payne JA); [92] (Emmett AJA). 4. With respect to the proposed defence of consent, the Court held that it did not consider that the type of issues that may arise in relation to consent were such that Mr Judd's inability to give instructions at trial would necessarily be of such unfairness as to warrant a permanent stay of proceedings: [71]-[82] (Bell P); [91] (Payne JA); [99] (Emmett AJA). 5. Observations by Bell P on the defence of consent to civil claims for sexual assaults of minors: [71]-[82] (Bell P); [91] (Payne JA); [99] (Emmett AJA).

Judgment

1. BELL P: This appeal is from a decision of Garling J (the primary judge) to dismiss a summons brought by Trevor Athol Gorman and Ian Alexander Duncan as executors of the Estate of the late Roy Donald Judd (the Estate). The summons had sought the permanent stay or dismissal of three sets of proceedings which had been commenced separately in the Supreme Court of New South Wales by three individuals, Messrs McKnight, Channell and Gammage, against the Estate. I will refer to those three underlying proceedings as the McKnight proceedings, the Channell proceedings and the Gammage proceedings respectively.
2. All three sets of proceedings sought damages from the Estate consequent upon alleged sexual assaults by Mr Judd on each of Messrs McKnight, Channell and Gammage between about 1978 to 1981, 1981 to 1984 and in 1993 respectively. Thus, at the time the three sets of proceedings were commenced, the underlying allegations related to events that were almost 40 years old in the case of Mr McKnight, approximately 35 years old in the case of Mr Channell and almost 25 years old in the case of Mr Gammage. Messrs McKnight, Channell and Gammage were approximately 13-16, 14-17 and 15 years of age respectively at the time of the alleged sexual assaults.
3. The sexual assaults are alleged to have occurred principally at Mr Judd's farm in Brownlow Hill, New South Wales and, in the case of Mr Channell, also at the Camden Air League training building at Camden Airport. Mr Judd had been a Qantas pilot, retiring from that position in the early 1990s. He was also a flight instructor at the Camden Air League. He was not married.
4. None of the three sets of proceedings is statute barred. This is because of amendments made to the Limitation Act 1969 (NSW) in 2016 which relevantly abolished the limitation period in relation to the civil claims for compensation for sexual assault. The detail of these (nationwide) amendments is recorded in this Court's recent decision in Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 at [32]−[38] (Moubarak). The amendments, however, did not and do not have the effect of precluding defendants from seeking a permanent stay of proceedings brought many years after the events the subject of the claim(s), on the basis that the proceedings amount to an abuse of process due to the passage of time, with implications for the availability of a fair trial. The Supreme Court's inherent and statutory power to stay proceedings (see, for example, s 67 of the Civil Procedure Act 2005 (NSW)) is expressly preserved by s 6A(6) of the Limitation Act.
5. The principles relating to applications to stay claims for compensation for what may be described as historic sexual assault were collected and considered by this Court in Moubarak and, subject to one aspect of Emmett AJA's concurring judgment in that matter, no challenge was made in the current appeal to the correctness of the statement of principles in Moubarak.
6. The principles in Moubarak were applied by this Court in Council of Trinity Grammar School v Anderson [2019] NSWCA 292 (Trinity Grammar School) especially at [427]−[430], and have also been applied at first instance: Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776 and ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164.
7. It should also be noted at the outset that, at the time each of the alleged assaults is said to have occurred, such conduct would have been illegal. At all material times up until the passage of the Crimes Amendment (Sexual Offences) Act 2003 (NSW), the age of consent was 18 years. Furthermore, in the cases of Mr McKnight and Mr Channell, the alleged conduct would have been illegal even if they were capable of having consented to it, as it was not until the Crimes (Amendment) Act 1984 (NSW) that sexual relationships between consenting males were decriminalised.
8. It will be necessary to return to the unlawful nature of the alleged conduct in due course and, in particular, the question whether consent of a minor can be raised as a defence to a civil claim for compensation for trespass to the person or assault when that assault was sexual and amounted to criminal conduct.

The underlying proceedings

1. It is necessary first to set out the allegations in each of the three underlying sets of proceedings in a little more detail.

McKnight proceedings

1. Mr McKnight pleads that, at all material times from about June 1978 until mid to late 1981, he: (a) lived with his parents in Camden; (b) was a student at Camden High School; and (c) was a minor who was not legally or psychologically capable of consenting to sexual acts with an adult male.
2. According to the Statement of Claim, Mr Judd is alleged to have first sexually assaulted Mr McKnight in or about winter 1978 or 1979 in a toilet cubicle at Curry Reserve in Camden.
3. After that first sexual assault, Mr McKnight pleads that Mr Judd asked him to work at his farm and that Mr McKnight agreed to do so, pleading that "he was confused and scared and [that] he felt that he had to work for [Mr] Judd so that no one would ever find out about the first sexual assault." Thereafter Mr McKnight went regularly to Mr Judd's farm on weekends, where it is alleged he was regularly sexually assaulted by Mr Judd as well as doing manual work on the farm for which he was paid.
4. It is pleaded that, following the second sexual assault (being the first sexual assault at Mr Judd's farm), Mr Judd told Mr McKnight not to tell anyone what had happened otherwise he would tell Mr McKnight's friends that Mr McKnight was a "poof".
5. Mr McKnight then pleads that he was "scared and felt compelled to continue going to [Mr] Judd's farm as he did not want anyone to know what had happe[ne]d". Mr McKnight pleads that following the first or second sexual assault, Mr Judd asked him his age and he told him his age which was either 13 or 14 years.
6. The Statement of Claim pleads that the sexual assaults continued for a period of approximately three years on virtually every occasion that Mr McKnight attended Mr Judd's property to work. It is also pleaded that, approximately six months after the first sexual assault, Mr Judd anally raped Mr McKnight and that this occurred on subsequent occasions.
7. It is also alleged that approximately one year after the first sexual assault, Mr McKnight stayed overnight at Mr Judd's farm and was sexually assaulted by other men whom Mr Judd had invited to a party at his house. It is alleged that there were further overnight stays and further assaults by Mr Judd and other men.
8. Mr McKnight pleads that, in or about 1981, when he was about 16 years old, he stopped going to Mr Judd's farm after he got a job as an apprentice fitter and machinist and that, following that, the ongoing sexual assaults stopped.
9. Mr McKnight seeks damages for shock, trauma and humiliation, chronic post-traumatic stress disorder, mood disorders with chronic depression, anxiety and hepatitis. Particulars of continuing disabilities supplied include chronic drug abuse and addiction, gambling addiction, severe loss of enjoyment of life and depression. Damages are claimed for both out-of-pocket medical and pharmaceutical expenses as well as for economic loss. Aggravated and exemplary damages are also claimed. One of the particulars of exemplary damages is that "[t]he sexual assaults constitute criminal conduct of a severe type. [Mr] Judd has never been punished for his criminal conduct."

Channell proceedings

1. Mr Channell alleges that he was first sexually assaulted by Mr Judd in January 1981 when he was aged 14 and that the assaults occurred on a weekly basis for approximately three years when he attended Mr Judd's farm near Camden.
2. At least five sexual assaults were also alleged to have occurred in about 1982 at the Camden Air League training building at Camden Airport where Mr Judd was employed as a flight instructor.
3. Considerably more detail than is supplied in the Statement of Claim appears in a statement Mr Channell gave to the police in January 2016. This formed part of a police brief which was in evidence before the primary judge, and to which I will refer later in these reasons.
4. Mr Channell made a submitting appearance on the application for leave to appeal.

Gammage proceedings

1. Mr Gammage alleged that he was sexually assaulted by Mr Judd on approximately six occasions in 1993 over a period of two months when he was aged 15 and still at school.
2. Each claim for sexual assault is formulated as involving a trespass to the person and assault and battery. In addition, it is alleged that Mr Judd owed a duty of care to Mr Gammage as a minor under his care, which was breached by reason of each of the sexual assaults.
3. The basis for the allegation that Mr Gammage was under Mr Judd's care appears to derive from particulars to the claim which are to the effect that, on the first occasion he met Mr Gammage, Mr Judd picked him and a friend up in his car when they were at a park whilst absconding from high school, and took them back to his house.
4. As with Mr Channell, considerably more detail in relation to the alleged sexual assaults was contained in a statement he gave to the police in December 2015 which also formed part of the police brief which was in evidence before the primary judge.

Chronology

1. I have already noted that the events the subject of the underlying claims are alleged to have occurred many years ago.
2. But it is the chronology of events in more recent years, prior to the commencement of proceedings, that assumes real significance for present purposes.
3. On 1 August 2015, Mr McKnight gave a statement to the police detailing his allegations against Mr Judd. These were the same allegations that form the basis of Mr McKnight's civil claim.
4. Consequent upon the statement, police applied for and obtained a surveillance device warrant in September 2015 and, in October 2015, a telephone conversation between Mr McKnight and Mr Judd was recorded. The transcript of the recording was tendered on behalf of the executors of the Estate in evidence before the primary judge, although Mr Neil QC, who appeared for the Estate, reserved the right to object to its admissibility at any final hearing. It suffices for present proposes to observe that the transcript demonstrates that Mr Judd knew that Mr McKnight was still at school and indeed was only 14 years at the material time. The transcript includes the following: "[Judd] You were just horny. But boy, were you ever horny. God. You were the horniest 14 year old I think I'd ever met. But you know, it was good fun. [McKnight] Well I didn't know what sex was until … [Judd] Yeah. [McKnight] … I ran into you. [Judd] Yeah. Yeah, amazing. [McKnight] Mmm. [Judd] It was incredible. Yeah, I think the first time, was it the first time you ever shot off? When I sucked you off in the … [McKnight] In the public toilets there? [Judd] … toilets? Yeah. [McKnight] In the, barbeque sheds? [Judd] Yeah. [McKnight] Yeah. [Judd] Yeah. Amazing. I, thought it was all bullshit because I assumed you were 17 or 18, and when you said you were 14, and then I said, [w]hen were you 14? Thinking you might be nearly 15, you said, [i]n 3 months' time, I nearly, I nearly died. I really nearly died. I can't believe it. I remember it all as though it happened yesterday."
5. Whether or not this transcript would ultimately be admissible, it informs the question as to whether or not it is open to the executors to rely on an argument that the Estate's defence would be prejudiced because they did not know, given Mr Judd's death, whether or not he was involved in a sexual relationship with Mr McKnight when he was a boy aged 13 or 14 years old, and thus would be unable to address those allegations on account of Mr Judd's death.
6. Mr Judd was arrested on 3 December 2015 and charged with multiple offences contrary to s 81 of the Crimes Act 1900 (NSW) which relevantly provided that "[w]hosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years". Many but not all of the offences disclosed on the Court Attendance Notice and Facts Sheet related to alleged assaults of Mr McKnight. The Facts Sheet contained considerable detail in relation to Mr McKnight's allegations of multiple sexual assaults over the course of three years. Mr Judd was subsequently also charged with offences in respect of Messrs Gammage and Channell.
7. Mr Judd was visited in gaol on 4 December 2015 by a solicitor, Mr Wrench, who is also the solicitor for the Estate in the present proceedings. Mr Wrench swore an affidavit and was cross-examined before the primary judge in relation to his meeting with Mr Judd on 4 December 2015 and subsequent conferences following Mr Judd's release on bail. Mr Wrench gave evidence that he had the Facts Sheet at the time of his first meeting with Mr Judd. Under cross-examination, Mr Wrench said: "Q. Would you agree with me that that is a Facts Sheet which relates to the charges against Mr Judd concerning my client, Mr McKnight? A. Yes. Q. And it was this document, or one very similar to it, that you had at the time that you first met with Mr Judd? A. Yes. Q. And during the course of your initial conference with Mr Judd did you ask him questions about the allegations made in this document? A. Briefly. Q. And did he give you answers in response to your questions? A. Yes. Q. What did you ask him, to the best of your recollection? A. If I can rephrase that, I didn't ask him questions, I told him about the allegations generally. I spoke about the bail process and that, where it is something he said he told me that he denied the allegations or it was consensual or along those lines. HIS HONOUR Q. Pause there. Tell me again what he told you? A. He said something similar to that he was not guilty of this and that it was consensual. … Q. But you described to him the general nature of the allegations contained within the facts sheet? A. Yes. Q. And that included the name of my client, Mr McKnight? A. Yes. Q. That included the dates about which the allegations related? A. Yes. Q. And that included Mr McKnight's ages at the time of the allegations which were being made against him? A. I don't recall. Q. And you understood that the basis upon which Mr Judd said that he was not guilty was not that he had not had sex with Mr McKnight but that the sex was consensual? A. Yes. Q. So he was not denying the factual basis of the allegations, it was just that the sex that are outlined in the allegations was consensual? A. Yes. Q. Did he give you any other instructions as to the basis upon which he was pleading not guilty? A. No".
8. Later in his evidence, Mr Wrench agreed with the proposition that Mr Judd's response to the allegations was that the sexual activity between him and Mr McKnight was consensual.
9. Mr Gammage provided a detailed statement to police on 8 December 2015 together with a single page statement dated 23 December 2015 annexing a school photograph of himself.
10. Mr Wrench had a subsequent conference in his office with Mr Judd in December 2015. Asked in cross-examination whether or not he discussed the content of the allegations against Mr Judd in any more detail on this second occasion, Mr Wrench said "[o]nly in the same terms I described on a previous occasion, in general terms."
11. Mr Channell provided a statement to police on 13 January 2016 giving considerable detail of his interactions with Mr Judd over the course of a number of years.
12. Mr Wrench had a further conference with Mr Judd on 9 April 2016. By this time, the police brief, including a detailed statement by Mr McKnight, had been served on Mr Judd. Mr Wrench was also aware by the time of this conference, if not beforehand, of the transcript of the 2015 telephone conversation between Mr McKnight and Mr Judd, part of which I have extracted at [30] above. Mr Wrench was relevantly cross-examined about this in the following terms: "Q. And you were aware at that stage that there was a transcript of a conversation between Mr McKnight and Mr Judd? A. Yes. Q. And that is a matter that you discussed with Mr Judd at the time, isn't it? A. To a degree. Q. You read the transcript I take it? A. Yes. Q. And you formed a view, didn't you, that that transcript contained admissions by Mr Judd about the allegations which were being made against him? A. I formed the view it contained admissions that there was conduct between them, sexual conduct that occurred between them. Q. And it was admissions relating to sexual conduct that had occurred over an extended period. Would you agree with that? A. Yes, I will agree with that."
13. Mr Judd died on 2 May 2016 at the age of 77.
14. The McKnight proceedings were commenced on 18 October 2016, the Channell proceedings on 3 January 2017 and the Gammage proceedings on 30 March 2017.
15. Defences to each set of proceedings have been filed. They principally comprise non-admissions.

The decision of the primary judge

1. The primary judge refused to permanently stay or dismiss any of the three underlying sets of proceedings, and thus dismissed the summons taken out on behalf of the Estate.
2. His Honour's decision predated that of this Court in Moubarak but, in his application of principle, it was entirely consistent with it. In approaching his task, the primary judge identified many of the statements of principle that were collected in Moubarak and which it is unnecessary to reproduce in these reasons. Thus, his Honour noted that application for a permanent stay of proceedings called 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": at [121]. He noted, correctly and consistent with authority, that such relief was only to be granted in the "most exceptional" of circumstances, with the consequence that the Estate bore a "heavy onus" in seeking to secure the relief sought: at [122]-[123]. His Honour also noted, again consistent with authority including Moubarak, 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 would be unfair, or that a permanent stay should be granted": at [124].
3. In stating at [126] of his judgment that he was not satisfied that any hearing of the underlying proceedings would be "manifestly unfair" to the Estate or "would otherwise bring the administration of justice into disrepute among right-thinking people", the primary judge was referring to descriptions of outcomes which the High Court, in various cases which are collected in Moubarak at [68]−[71], had indicated would amount to an abuse of process and justify a permanent stay of proceedings.
4. The primary judge summarised his reasons for concluding that the Estate had failed to discharge the heavy onus which it bore in seeking a permanent stay of proceedings at [127] as follows: "(a) 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; (b) 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; (c) 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; (d) 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 (e) 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."
5. Importantly, for the purposes of this appeal, the primary judge added at [128] that he did: "…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."
6. Earlier in his judgment, at [83]−[84], the primary judge had observed that: "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. 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."
7. At [134], the primary judge also referred to other factors relevant to the exercise of discretion which would "tell against the grant of the relief". Thus, at [135] he said: "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."

Grounds of appeal

1. Mr Neil took the position that he needed to demonstrate a House v R (1936) 55 CLR 499; [1936] HCA 40 (House v R) error in order to succeed.
2. Whether or not such an error in the exercise of a discretion needs to be demonstrated in an appeal from a decision permanently to stay proceedings may be open to debate (see Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 at [32]-[35]), but it is not necessary to resolve that question in the present case.
3. In oral submissions, Mr Neil pointed to two errors in particular which he said engaged House v R and which opened up the judgment below to review. The first error identified related to the primary judge's finding at [82] which was to the following effect: "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."
4. This was an important finding and Mr Neil contended that it was factually wrong, both with respect to Mr McKnight who is referred to in the first sentence of [82], and with respect to Messrs Gammage and Channell who are referred to in the second sentence of [82].
5. The second error identified was said to be one of principle. It related to [134]-[135] of the primary judgment, which has been extracted at [48] above.
6. In written submissions, an attack was also made on the primary judge's criticism of the inquiries made by Mr Wrench, both of Mr Judd and more generally, his Honour having described these as "desultory" and "perfunctory": see the passages extracted at [46] and [47] above. That submission can be addressed immediately: what his Honour said, in my opinion, was in substance that the exceptional nature of a decision to grant a permanent stay of proceedings required unfairness to be clearly demonstrated. His Honour noted that unfairness will not be able to be demonstrated where the party seeking such exceptional relief, and who bears the onus of proof, has not explored or pursued all reasonable lines of inquiry that may bear upon the fairness or unfairness of any trial proceeding cf. Trinity Grammar School at [489], where Bathurst CJ said: "It was necessary for it [the School] to make all reasonable inquiries to ascertain if material was available to enable it to meet the claim. However, that does not mean that it was necessary to pursue any line of inquiry however remote which may, as a matter of mere possibility, produce some information which may be of assistance in dealing with the issue. That would pose an unreasonable burden on the applicant and would of itself be oppressive and unfairly burdensome."
7. In my opinion, there were a number of inquiries which the Estate's solicitor could have made, but that had not apparently been made, which cannot be described as remote. These were the subject of cross-examination on the hearing of the summons by Mr Newton of counsel who appeared for Mr McKnight, and were summarised by the primary judge at [76] of the primary judgment; see also the final sentence of [77] and [78]. It was no doubt this material that the primary judge had in mind when choosing to use the epithets "desultory" and "perfunctory" in relation to the inquiries that had been made by Mr Wrench, up to the making of the stay application.
8. It was then contended on behalf of the Estate that the primary judge erred in his ultimate decision, and that he should have found that there could not be a fair trial in all of the circumstances, particularly given the death of Mr Judd in 2016. This submission focussed in particular on issues going to what was suggested was the consent by some or all of Messrs McKnight, Channell and Gammage to the alleged assaults, notwithstanding their ages at the time of the events in question, it being put that Mr Judd's death and thus inability to give evidence as to the plaintiffs' alleged consent was productive of sufficient injustice so as to warrant a permanent stay of proceedings.
9. It will be necessary to deal with that issue in some detail but, first, the two alleged errors identified at [51]-[53] above can be dealt with relatively briefly.

Alleged error in fact finding

1. As noted in [51]-[52] above, an attack was made on two aspects of [82] of the primary judgment: first, the primary judge's statement 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"; secondly, with respect to Messrs Channell and Gammage, the primary judge's statement that "broadly speaking [Mr Judd] agreed that the conduct had taken place, but again sought to defend it on the basis that it was consensual".
2. There is no valid basis, in my opinion, for criticising the primary judge's observations with respect to Mr Judd's position in relation to the allegations made by Mr McKnight. This finding was plainly supported by passages from the cross-examination of Mr Wrench at first instance to which I have referred at [33]-[34] and [38] above.
3. At one point in his cross-examination, Mr Wrench appeared to retreat from his initial evidence and said that he only recalled Mr Judd saying that the initial contact with Mr McKnight in the toilet cubicle at Curry Reserve was consensual (see [11] above). However, both before and after he gave that evidence, Mr Wrench's evidence was not so confined, as the passages I have referred to above make plain. To the extent that there was any ambiguity as to the breadth of Mr Wrench's evidence, no attempt was made in re-examination to clarify it.
4. Further, in relation to the number of interactions between Mr Judd and Mr McKnight, the telephone intercept transcript, part of which is extracted above at [30], supported the acceptance by Mr Judd of numerous interactions. So much was accepted by Mr Neil on behalf of the Estate in the course of the appeal: "BELL P: There are a number of passages in the transcript which seems susceptible, readily susceptible of founding an inference that there was more interactions ‑ physical interactions than the single, initial interaction in the toilet block. Do you accept that? NEIL: Yes, your Honour."
5. In relation to the observations made in the second sentence of the primary judgment at [82] in relation to Messrs Gammage and Channell, extracted at [51] above, it is important first to note the primary judge's use of the phrase "broadly speaking". That phrase was aptly used because it reflected the rather general nature of Mr Wrench's evidence under cross-examination in relation to Messrs Gammage and Channell.
6. With respect to Mr Gammage, the following passage from Mr Wrench's cross-examination supports the primary judge's specific observation which was challenged: "Q. Did he ever offer any explanation in a similar vein as he had with Mr McKnight in relation to Mr Gammage? A. I believe either one or two of them he said at the time that some of these people he had contact after the incident and, in similar terms, he - he believed it might have been consensual. I think he was implying along those sort of lines. Q. So, can I take it that, in relation to Mr Gammage, there was some inference that you had understood that this was of a similar vein to his defence in Mr McKnight's, that is, that it was consensual? A. Yes, but we didn't descend into the detail. Q. No, I understand. You have explained that there wasn't a great deal of detail but, in regards to Mr Gammage, did you go any further than that preliminary position that he had indicated that this was consensual, or was that as far as it went in relation to that? A. I think it was as far as that; if - he gave a combination of instructions that was a little bit blurred in terms of either consensual or some incidences didn't happen in the way it was described. Q. So, some was consensual and some may have not happened? A. Mm." With respect to Mr Channell, the following cross-examination of Mr Wrench is of relevance: "Q. So, it is possible that you may have read this statement from Mr Channell before the meeting or the conference that you had with Mr Judd in April? A. Yes. Q. But you say you didn't put to him the allegations that were made in these, even though they were similar to the allegations made against him in respect of which he was charged? A. I did in general terms. Q. In general terms? A. Yes. Q. Can you be more elaborate today? A. Yes, well, I - I recall just telling him that there were more complainants involved in this matter. They've provided statements in this matter. We are going to have to have a serious conference later down the track when we have the full brief of evidence and it is likely we are going to have to get Senior Counsel advice in it because it is so serious. And he then, off-the-cuff, expressed some views about these people and then I said - we left it at that. Q. What were those views? Sorry, I perhaps wasn't listening when my friend was asking questions. A. Along the lines of that he was not guilty and some of these acts did - were either consensual or didn't occur."
7. In my opinion, the passages from the cross-examination of Mr Wrench that I have extracted above sustain the primary judge's observation which was the subject of challenge, and that challenge should be rejected.

Alleged error of principle

1. It was submitted that the primary judge erred in treating his inquiry as involving a balancing process and, in particular, in weighing the public interest in permitting claims for sexual abuse of children to be brought at any time, as his Honour did in the passage I have extracted at [48] above. It was submitted that, once the Court had reached a conclusion that a fair trial was not possible, a stay should be granted and no question of balancing arose. In this context, Mr Neil challenged the correctness of the following observation by Emmett AJA in Moubarak at [206] where his Honour said: "The relevant balancing exercise is between the unfairness to the present appellant, if the Proceedings were to go to trial, and the unfairness to the respondent in losing the opportunity of compensation, if the Proceedings are stayed."
2. Mr Newton, who appeared for Mr McKnight, responded in two ways. First he pointed out, correctly in my opinion, that the observation of the primary judge the subject of attack followed his Honour's statement in [133] that: "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."
3. In other words, his Honour's observation as to the public interest in the plaintiffs' claims being heard was not essential to his decision.
4. Secondly, Mr Newton pointed to several passages in the majority joint judgment in Walton v Gardiner (1993) 177 CLR 378 at 396 and 398; [1993] HCA 77 which referred to an application for a permanent stay of proceedings as involving a "weighing process" and "a subjective balancing of the various factors and considerations supporting or militating against a conclusion that a continuation of the proceedings in the Tribunal would be so unfairly and unjustifiably oppressive of the respondents as to constitute an abuse of the Tribunal's process."
5. Concepts of "balancing" and "weight" were also invoked by the plurality in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565; [1990] HCA 55.
6. No error of principle of the kind asserted was established. Contrary to the Estate's written submissions, nothing in the primary judge's reasons or his application of principle involved his Honour applying different principles to sexual assault cases, compared to other cases for permanent stays of proceedings.

Consent

1. In submissions in this Court, the question of whether or not a fair trial would be possible in view of Mr Judd's death focussed to a significant extent on the role that consent may play in any trial. In particular, it was put that Mr Judd would not be able to testify that he believed that each of the plaintiffs consented to their sexual interactions with him.
2. There is, however, an important distinction between the fact of consent (and its availability as a legal defence), on the one hand, and a person's belief as to another's consent, on the other hand. The latter may form the basis of a defence to criminal charges in some but not all contexts (for example, not where the criminal offence exists irrespective of consent: see [7] above). In the context of consent as a defence to a claim in tort, however, when and if such a defence is available (as to which see further below), it is the presence or absence of consent that matters. That, in turn, will principally turn on an analysis of the evidence of the plaintiff in any given case and an assessment of his or her conduct at the time in question, including his or her age and experience. It would not be affected by any evidence as to Mr Judd's state of mind (see Moon v Whitehead [2015] ACTCA 17 at [22] (Moon)) so that his inability to participate in the trial should not in this regard be considered to be a material source of prejudice.
3. Views differ as to whether the absence of consent is an element of a cause of action based on trespass to the person, assault or battery or, rather, is a matter that, if available as both a matter of law and on the facts, falls to be pleaded as a defence. McHugh J's judgment, although dissenting on the facts, in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 310-311; [1992] HCA 15 (Marion's Case) supports the latter view, as does the decision of this Court in Dean v Phung [2012] NSWCA 223 at [59]-[62], the decision of the ACT Court of Appeal in Moon at [14], and the decision of the Supreme Court of Canada in Norberg v Wynrib [1992] 2 SCR 226 at 246 and 303 (Norberg). A number of decisions support the former view, however, including the learned discussion of the issue by Leeming JA in White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [94]-[129]; see also Freeman v Home Office (No 2) [1984] QB 524 at 539; J Goudkamp, Tort Law Defences (Hart Publishing, 2016) at 3.61; SKN Blay, "Onus of Proof of Consent in an Action for Trespass to the Person" (1987) 61 ALJ 25.
4. As has been noted at [10] above, Mr McKnight has positively pleaded that he was a minor who was not legally or psychologically capable of consenting to sexual acts with an adult male and, by necessary implication, did not consent to the sexual assaults so that nothing is likely to turn on the debate as to onus in his proceedings. The absence of consent is not raised explicitly in the Channell and Gammage pleadings, and whether or not it should have been positively pleaded was not a matter that was debated before the Court of Appeal. During the hearing, Mr Weinberger on behalf of Mr Gammage took the position that there was "consent" in the sense that his client returned on a regular basis to Mr Judd's property after each assault, and was not forced to do so but that, because of his age, he was lawfully not capable of giving his consent.
5. Consent has not in fact to date been pleaded by way of defence to any of the three underlying sets of proceedings. This is despite the fact that defences (described by Mr Neil in argument as "holding defences") have been filed and it would appear that the Estate, based upon Mr Wrench's evidence and the plaintiffs' witness statements to police (insofar as they record that each plaintiff came back to Mr Judd's farm on a regular basis notwithstanding sexual assaults on prior occasions, and without any apparent physical coercion to return or engage in sexual activity), would be in a position to do so.
6. If consent is pleaded as a defence to the claims, the plaintiffs in each set of proceedings will either put that in issue as a question of fact and/or contend that consent is not an available legal defence to a civil claim for damages for sexual assault of a minor. Issues may arise going to the reality of any apparent consent and/or its availability in circumstances where the plaintiffs may have lacked the maturity to give such consent (see Marion's Case at 311). In Norberg, La Forest J, delivering the judgment of himself, Gonthier and Cory JJ, observed (at 247) that: "A 'feeling of constraint' so as to 'interfere with the freedom of a person's will' can arise in a number of situations not involving force, threats of force, fraud or incapacity. The concept of consent as it operates in tort law is based on a presumption of individual autonomy and free will. It is presumed that the individual has freedom to consent or not to consent. This presumption, however, is untenable in certain circumstances. A position of relative weakness can, in some circumstances, interfere with the freedom of a person's will. Our notion of consent must, therefore, be modified to appreciate the power relationship between the parties." In the same case, Sopinka J observed (at 304) that: "In assessing the reality of consent and the existence and impact of any of the factors that tend to negate true consent, it is important to take a contextually sensitive approach. ... Certain relationships, especially those in which there is a significant imbalance in power or those involving a high degree of trust and confidence may require the trier of fact to be particularly careful in assessing the reality of consent." cf. R v Howard [1966] 1 WLR 13 at 15.
7. Furthermore, it may well be that, as a matter of common law and informed by the public policy manifest in legislation at the time of the alleged assaults (see [7] above), and considerations of legal coherence, even actual consent, if established, may not be available as a defence: but see Bain v Altoft [1967] Qd R 32 at 41 per Gibbs J; cf. W Page Keeton et al (eds), Prosser and Keeton on Torts (5th ed, West Publishing Co, 1984) at 124 where it is said: "If the defendant's conduct is punishable as a crime primarily or substantially because of its harmful consequences to the consenting party, then there is good reason to take the position that consent will not be regarded as effective to bar a tort action, especially if the consenting party is not pari delicto or in equal fault, with the defendant."
8. In argument, Mr Neil acknowledged that this was a complex issue which would need to be resolved in any trial. For present purposes, I do not consider that the type of issues that may arise in relation to consent are such that Mr Judd's inability to give instructions at any trial would dictate that any trial would necessarily be of such unfairness as to warrant a permanent stay of proceedings.
9. To the extent that the question is one of law, that is most unlikely to be affected by any instructions that Mr Judd could give.
10. To the extent that the question relates to the reality of any alleged consent that may otherwise be implied from the fact that each of the plaintiffs, on their own evidence, apparently voluntarily returned to Mr Judd's property on a regular basis notwithstanding previous alleged assaults, the focus will be on the evidence of each of the plaintiffs. An assessment of their evidence will be relevant to determine whether or not each plaintiff was capable of understanding what was happening to them at the time and felt any ability to, or had the requisite maturity and strength, to resist.
11. As Mr Neil submitted in the course of the appeal: "… [T]his is a very complicated area of law. We submit on the evidence it may have been that Mr McKnight was mature enough, if I could put it that way, to consent. There's a complication in that at the time all homosexual acts were illegal whatever age but that would have to be, in a civil case, tempered, we would submit, by some of the realities referred to in cases like Bain's case. Perhaps I'll withdraw submissions based on particular ages. It's not palatable to talk about consents at earlier ages, but if a person is mature enough, and that would be a matter, we would submit, for a trial, then consent may be a defence."
12. The "maturity" or otherwise of Messrs McKnight, Gammage and Channell at the time of the alleged assaults is a matter that can be tested at trial through cross-examination, and also may be influenced by any expert evidence that is led in light of the fact, as emerges from the telephone transcript, that the sexual interactions between Mr Judd and Mr McKnight commenced from about the time that Mr McKnight was 13 years old.

Moubarak

1. The Estate contended that the three sets of proceedings presented a stronger case for a stay than Moubarak, whereas the respondents sought to distinguish the proceedings from Moubarak.
2. Each case necessarily turns on its own facts, and the unique combination of facts in light of the nature of the allegations and the matters in issue in any given case is such that it is not a particularly profitable exercise simply to compare individual features of different cases. Each case must be considered in light of all of the particular circumstances applicable to it. As Leeming JA observed in Moubarak at [193]: "There will be other cases which are different and less clear-cut. There will be cases where the defendant is not incapable, but many decades have passed, like Batistatos. There will be cases where there is evidence of actual prejudice, in the loss of documents or the death of witnesses. There will be cases where the plaintiff has the advantage of admissible tendency evidence. There will be cases against defendants which are said to be vicariously liable (whether under a traditional or a novel statutory basis) for the sexual assault of employees or agents; these claims may give rise to different considerations. There will be cases where the alleged perpetrators are long since deceased. Separately from all of the above are cases where there has been delay by the plaintiff which is culpable. The exercise of the discretionary power preserved by s 6A(6) [of the Limitation Act] will fall to be worked out case by case."
3. There are, in any event, a number of key differences between the present sets of proceedings and Moubarak, the most significant of which is that, in light of Mr Wrench's evidence extracted earlier in these reasons as well as the transcript of the telephone intercept extracted at [30] above, the existence of sexual interactions between each of the plaintiffs and the late Mr Judd cannot seriously be put in issue.
4. By contrast, Mr Moubarak suffered from advanced dementia at the time that the allegations of sexual assault of his niece were first raised, and he was incapable of responding to them, even at the most general level. There was no certainty that there had been any sexual interactions in Moubarak and the defendant was, because of his dementia, unable to give any evidence or instructions as to that matter. By contrast, in the present case, because the allegations by all of the plaintiffs were made whilst Mr Judd was alive and in a position to discuss them with Mr Wrench, who gave evidence that the allegations had been so discussed, the position was quite different.
5. Similarly, there cannot be any real doubt as to the age of at least Mr McKnight at the time of the sexual interactions with Mr Judd, as well as Mr Judd's knowledge of Mr McKnight's age at the time. This emerges not just from the transcript of the intercepted telephone conversation extracted at [30] above, but also because there was in evidence a reference written and signed by Mr Judd for Mr McKnight, dated 12 November 1975, which stated: "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. I would recommend him to any one requiring a good worker. He is very keen to improve himself and not afraid to work. He would be particularly suitable for an apprenticeship." (emphasis added).
6. In his claim for exemplary damages, Mr McKnight has particularised the criminal nature of the assaults as relevant to take into account. To the extent that a potential answer to this claim may have been that Mr Judd had a honest and reasonable belief that Mr McKnight was above the age of 18, Mr Judd's reference for Mr McKnight (at [87] above) in conjunction with excerpts from the telephone intercept transcript (at [30] above) would, in my opinion, be likely to deprive the executors of the Estate from having any reasonable basis to raise such a defence or answer to the claim for exemplary damages. In any event, at the time of the alleged sexual assaults upon Mr McKnight, the alleged conduct would have been illegal even if Mr McKnight had been capable of having consented to it given that, as noted at [7] above, it was not until the Crimes (Amendment) Act was passed in 1984 that sexual relationships between consenting males were decriminalised.
7. Thus, for both of these reasons, to the extent that Mr Judd's death precluded his ability to give instructions as to this matter, that does not, in my opinion, found any material source of prejudice to the defence of the proceedings.

Conclusion and orders

1. Bearing in mind the heavy onus which an applicant for a permanent stay of proceedings faces, and given the failure of the attacks on the primary judge's careful and thorough judgment, I would make the following orders: (1) Grant leave to appeal. (2) Dismiss the appeal with costs.
2. PAYNE JA: I have had the advantage of reading the decision of the President in draft. I agree with the orders proposed by his Honour and with his reasons.
3. The principles to be applied in determining whether to grant a permanent stay were not controversial on the appeal. The parties accepted they were correctly set out in Moubarak by his tutor Coorey v Holt [2019] NSWCA 102.
4. It is the application of those principles to the precise and dense factual circumstances of each case which explains why I joined with the Chief Justice in ordering a permanent stay in The Council of Trinity Grammar School v Anderson [2019] NSWCA 292 and my agreement with the President that grounds for such an exceptional order have not been shown here.
5. One important difference between the two cases is identified by the President at [54]-[55]. It is clear that a party seeking the exceptional relief of a permanent stay must demonstrate that all reasonable enquiries which bear upon the fairness or unfairness of the proceedings have been undertaken. In Trinity Grammar School the Chief Justice explained that certain remote lines of inquiry which as a matter of mere possibility might produce some relevant material were not, in the circumstances of that case, appropriately characterised as "reasonable enquiries".
6. In the present case, the quality and extent of the enquiries made by the applicant for the permanent stay about matters which bore upon the fairness or unfairness of the proceedings were appropriately characterised by the primary judge as "perfunctory". The applicant for the permanent stay, in the circumstances of this case, did not prove that reasonable enquiries had been undertaken.
7. In the circumstances of the present case, a permanent stay has not been demonstrated to be warranted.
8. EMMETT AJA: Three sets of proceedings were brought against the Estate of the late Roy Donald Judd by three individuals, each of whom alleges that Mr Judd sexually assaulted him whilst a minor. The assaults on the minors are alleged to have taken place between 25 and 40 years prior to the commencement of proceedings. Amendments made to the Limitation Act 1969 (NSW) in 2016 abolished, retrospectively, the limitation period for actions in respect of civil claims for compensation for assaults of the nature of those presently in question. Accordingly, none of the proceedings is statute barred.
9. However, the amendments do not preclude a defendant from seeking a permanent stay of proceedings brought many years after the occurrence of the events that are the subject of the proceedings. [1] The legal personal representatives of Mr Judd applied for a permanent stay of each of the three sets of proceedings under s 67 of the Civil Procedure Act 2005 (NSW). A judge of the Common Law Division made orders dismissing the applications and the legal personal representatives have sought leave to appeal from those orders.
10. I have had the advantage of reading in draft form the proposed reasons of the President for concluding that leave to appeal should be granted but that the appeals should be dismissed with costs. I agree with the orders proposed by the President for his Honour's reasons.

Amendments 28 February 2020 - Added additional counsel for First Respondent. 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: 28 February 2020