MTH v State of New South Wales

Civil Proceedings

1. On 16 April 2020, Mr Greg Walsh, solicitor, was instructed by MTH to commence proceedings against the State of NSW as first defendant and Mr Croft as the second defendant. At that time, Mrs Croft was not joined as a defendant. MTH has previously told the Court that this was contrary to her instructions.
2. At all times the State of NSW has defended the proceedings. Their position is not directly relevant to the issues before the Court because they take a neutral stance. Accordingly, the detail of the proceedings relating to the first defendant, the State, can be put to one side.
3. On 29 March 2021, Mr Phillip Harris, solicitor, on the instructions of Mr Croft, filed a Defence on his behalf as the second defendant.
4. In that Defence, Mr Croft admitted that MTH had been placed into foster care with his wife, Sandra, and himself. He admitted that she resided with Mrs Croft and himself on the property "Cleggswood". He denied that any assault or sexual assault had taken place.
5. In that first Statement of Claim, although Mrs Croft was mentioned in the recitation of the relevant facts, she was not alleged to have committed, or else to have been involved in the commission of any tort. The Statement of Claim also did not refer to any conduct involving Mr and Mrs Croft and the young man, RS, to whom earlier reference has been made.
6. On 27 July 2020, in an application to the Common Law Duty Judge, Campbell J, MTH sought freezing orders against the property of both Mr and Mrs Croft in aid of these common law proceedings. Freezing orders were made, initially ex‑parte, and thereafter they were continued until, ultimately, on 4 December 2020, freezing orders were made by consent, and which were expressed to be made "without admissions". Additional orders were made requiring Mrs Croft to re‑transfer to Mr Croft the interests in certain identified properties which he had transferred to her in 2019 for a token monetary consideration.
7. On 3 March 2022, MTH filed a Notice of Motion, whilst acting for herself, seeking leave to join Mrs Croft to the proceedings as the third defendant.
8. For reasons which were given in my judgment, that Notice of Motion was dismissed: MTH v State of New South Wales [2022] NSWSC 884.
9. In those reasons, I summarised my conclusion in the following terms: "80. It is convenient to summarise my reasoning. It is this: (a) the claim being made by MTH against Mrs Croft is a novel one at common law. However, it may, when properly pleaded, be able to be demonstrated to be no more than a reasonable incremental development of the common law and that, therefore, the claim ought be permitted to proceed; (b) the claim, as it presently exists in the proposed Amended Statement of Claim, is not adequately formulated or pleaded. It has not set out all of the relevant facts, matters and circumstances, and does not adequately illustrate a duty of care, nor does it accord with the principles of pleading of a claim under the Civil Liability Act; and (c) I am not persuaded that it is appropriate at this stage to determine any question of futility based upon the Limitation Act."
10. I noted that the dismissal of that particular Notice of Motion was not a bar to the filing of any future notice of motion if a properly formulated pleading against Mrs Croft could be prepared.
11. On 12 April 2023, Mr R P Higgins of Carroll & O'Dea, upon MTH's instructions, filed a Further Amended Statement of Claim ("FASOC").

Notice of Motion

1. On 15 June 2023, Mrs Croft filed a Notice of Motion seeking an order that the whole of the claim by the plaintiff against her be permanently stayed either pursuant to s 67 of the Civil Procedure Act 2005 or pursuant to the inherent jurisdiction of the Court.
2. Argument on the Motion was heard on 4 September 2023 when judgment was reserved.
3. On 8 September 2023, I pronounced the following orders and indicated that my reasons would follow: 1. Notice of Motion filed 15 June 2023 dismissed. 2. The third defendant to pay the Plaintiff's costs of the Notice of Motion. 3. The First Defendant to pay its own costs of the Notice of Motion.
4. These are my reasons for making the orders dealing with that Notice of Motion.

Further Amended Statement of Claim

1. The FASOC pleads a cause of action against the Estate of the late Mr Croft in terms similar to earlier pleadings, namely that he sexually assaulted MTH on at least 10 occasions. There is no difference of substance with this cause of action against the Estate of the late Mr Croft and that which had existed in previous iterations of the Statement of Claim.
2. Insofar as the liability of Mrs Croft is concerned, it is pleaded that, as she was a carer of MTH, she owed MTH a duty to take reasonable precautions to prevent her from being exposed to a foreseeable risk of not insignificant harm.
3. The risk of harm is pleaded in this way: "39AC The risk of harm to the plaintiff was that she would suffer injury by virtue of being subjected to physical, sexual and psychological abuse, assault, battery and trespass to the person by Croft while under the care of Croft and the third defendant."
4. It is alleged that that risk of harm was foreseeable to the third defendant either because she knew of it, or ought to have known of it.
5. The particulars of foreseeability are constructed upon the fact that prior to Mr and Mrs Croft caring for MTH, they had cared for twin brothers ("RS" and "PS"), one of whom, RS, was a complainant in the criminal proceedings. Insofar as the twins are concerned, it is alleged that Mr Croft, whilst they were in his care, and that of his wife, seriously physically abused them in various ways, which physical assaults were directly witnessed by Mrs Croft. It is also alleged that Mr Croft sexually assaulted RS on a number of occasions. It is pleaded that Mrs Croft specifically told Mr Croft to stop the abuse and that notwithstanding, he continued it. It is pleaded against Mrs Croft that on occasion, she would direct the twin brothers to go to a barn on the property at Cleggswood, near the house, "… for the purposes of Croft perpetrating serious physical abuse and sexual abuse …" on RS , and serious physical abuse on PS. It is alleged that the screams emanating from one of the two boys could be heard from the house. It is further alleged that Mrs Croft would direct one of the boys, RS, to have a shower after he had returned to the house following the serious physical and sexual abuse perpetrated upon him.
6. As well, it is alleged that Mrs Croft directly witnessed Mr Croft engaging in conduct in her presence that amounted to sexual degradation, sexual humiliation and sexually inappropriate conduct towards the two boys.
7. By reason of these matters, it is alleged that Mrs Croft knew or ought to have known that there was a risk that Mr Croft would engage in sexually degrading behaviour with MTH because of his previous inappropriate conduct with children under his care and the care of Mrs Croft.
8. It is pleaded that in breach of the duty referred to earlier, Mrs Croft failed to implement reasonable precautions against the risk of harm. The particulars of breach are as follows: "Particulars of breach (i) agreeing to accept the plaintiff into her care and the care of Croft when the third defendant knew or ought to have known that there was a not insignificant risk of Croft perpetrating serious physical abuse and sexual abuse on the plaintiff as a juvenile who was under the care of Croft and the third defendant; (ii) failing to refuse to accept the plaintiff into her care and the care of Croft when the third defendant knew or ought to have known that there was a not insignificant risk of Croft perpetrating serious physical abuse and sexual abuse on the plaintiff as a juvenile who was under the care of Croft and the third defendant; (iii) failing to report Croft's previous serious physical abuse of [… the twin boys] to an employee of DOCS or the police so that further juveniles such as the plaintiff would not be sent into the care of Croft and the third defendant; (iv) failing to report Croft's previous sexually degrading, sexually humiliating and sexually inappropriate behaviour to PS and RS's twin brother to an employee of DOCS or the police so that further juveniles, such as the plaintiff, would not be sent into the care of Croft and the third defendant; (v) failing to provide reasonable supervision of the plaintiff while under her care; (vi) failing to supervise or adequately supervise Croft in his interactions with the plaintiff; (vii) failing to make enquiries of the plaintiff's well-being while the plaintiff was under the care of the plaintiff and the third defendant; (viii) leaving the plaintiff unsupervised with Croft."
9. The plaintiff also claims exemplary damages against Mrs Croft, as well as aggravated damages. In the course of those pleadings on these claims, the following is alleged: "44l The third defendant was an active participant in the assaults to the extent that she directed the plaintiff to attend upon Croft for the purpose of Croft committing the assaults, or a certain number of the assaults, against the plaintiff."
10. It also pleads that Mrs Croft was in breach of the provisions of s 149(1) of the Child Welfare Act (NSW).
11. Section 149(1) of the Child Welfare Act as it existed at the relevant time, provided that any person who assaulted, ill-treated or else who caused or procured any assault or ill-treatment was guilty of an offence against the Act.
12. I note that, insofar as the factual allegations in the FASOC against Mrs Croft are concerned, they consist of: 1. a series of factual allegations about her knowledge of and participation in serious physical assaults and sexual assaults of RS and PS at a time prior to MTH arriving at their property to take up residence; 2. expressing to Mr Croft, her dissatisfaction with MTH's behaviour and her undertaking household chores with the intention, or for the purpose, of having MTH punished; and 3. at least by inference, and after the event, knowing that Mr Croft had punished MTH, Mrs Croft failed to take any steps to enquire of MTH either as to the type of punishment administered by Mr Croft and failed to take any steps to protect her against such further punishment.

Other Pleadings

1. Mrs Croft has not filed a Defence to the FASOC.
2. I have earlier noted that the State has filed a Defence denying any negligence on its part. Prior to his death, Mr Croft also filed a Defence denying that he engaged in the conduct alleged against him.
3. No reply by MTH has been filed to the Defences which have been filed and served.

Submissions of Mrs Croft

1. Mrs Croft submits that a permanent stay of the claim as against her should be granted due to: 1. the impoverishment of evidence relating to the claim, including the quality of the evidence that may be given by the plaintiff, MTH; 2. the death of two critical witnesses, namely her husband Mr Croft, and Mr Brian McIlveen, an officer of the Department of Community Services; 3. the absence of other witnesses who might be able to give relevant factual evidence; 4. delay on the part of the plaintiff in commencing and maintaining the claim against her prior to the death of Mr Croft; and 5. the inability of the third defendant to be able to meaningfully participate in the proceedings and answer the claim.
2. In addition, Mrs Croft relies upon the fact that MTH pleads a novel duty of care against her, which she says is incoherent with the relevant statutory scheme in existence at the time, and also that if the case proceeds, it will result in oppression to her sufficient to amount to an abuse of process.
3. In expansion of these grounds, Mrs Croft points to inconsistencies in the evidence of MTH, presently set forth in a series of statements given to police, and also in the sworn evidence which she gave at the criminal trial of Mr Croft. She identifies the vagueness of the timeframe and the context of the allegations of abuse now being made by MTH. She says that the fact that the accounts vary substantially in different contexts and times has the effect that she is unable to meaningfully deal with the variations and the extent of them.
4. She submits: "It is accepted that the fact that varying accounts given by the plaintiff are facts relevant to the alleged abuse, even though substantial, would not of itself justify a stay. However, the past inconsistency of the plaintiff is nevertheless an important element of the evidentiary prejudice to the third defendant."
5. In the circumstances here, the plaintiff points to the fact that the inability to rely upon accounts of, or evidence from, other key witnesses, such as her late husband and Mr Brian McIlveen in assisting to test the plaintiff's various accounts, gives rise to an irremediable prejudice.
6. Mrs Croft points to the absence of her husband Mr Croft, by reason of his death, and the resulting inability for any account of Mr Croft being available in answer to the claims of abuse upon MTH, including the details of, and surrounding, attending social, sporting or other events, given that he maintained a plea of not guilty to the criminal charges, and did not give evidence at his trial, as being a significant prejudice to her. She adds to that prejudice the fact that the accounts of abuse by Mr Croft against RS and PS cannot be directly contradicted by him.
7. Mrs Croft submits that in the circumstances of this case, the death of Mr Croft and the loss of his evidence when considered against the variable, inconsistent and poor quality of the likely evidence of the plaintiff, the Court would be satisfied that a permanent stay should be granted.
8. She also submits that the loss of evidence from the late Mr Brian McIlveen is a further factor which would make such an outcome compelling. She submits that the evidence that Mr McIlveen could give would be critical to her defence. One particular matter of importance which is the subject of evidence from MTH is, she submits, directly inconsistent with the evidence which Mr McIlveen would have been able to give. That subject is the facts and circumstances of the termination of her foster placement with Mr and Mrs Croft.
9. It is Mrs Croft's case that the placement of MTH was a 12-month fixed period placement and that it did not come to an end suddenly as MTH claims. She submits that this is a matter with which Mr McIlveen would be entirely familiar. As well, she submits that Mr McIlveen could give evidence about his contact with the plaintiff during the course of the placement. His ultimate written report, available to all parties, was that the plaintiff "enjoyed her time with the Crofts", and, further, he expressed a conclusion about six months after the period of residency came to an end, that Mr and Mrs Croft were still in contact with MTH who had "… benefited from the year spent with them". Mrs Croft points to the fact that any further exploration of the factual basis of this conclusion would be an important and beneficial feature of her defence which is now denied to her because of Mr McIlveen's death.
10. Mrs Croft accepts that there are some documentary records maintained by the Department which are available, although she submits that there are real doubts that the file which has been produced is a complete one. However, in the absence of evidence about what documents would ordinarily be expected to be in such a file, and without reference to an identified document being missing from the file, that is not a submission which can be accepted.
11. On the basis that the file is complete, Mrs Croft notes that the records of Mr McIlveen's interactions with the plaintiff are, necessarily, summaries only. She points to the fact that Mr McIlveen, who died before the criminal prosecution of Mr Croft, could have given evidence as to those interactions and the basis for his conclusions.
12. She submits that such evidence would be critical to a determination of whether, on the balance of probabilities, there had been any sexual assault of MTH by Mr Croft as alleged in the FASOC. As the evidence of Mr McIlveen could be anticipated to contradict much of what MTH says occurred, Mrs Croft submits that that evidence would directly address the overall reliability and truthfulness of the evidence of MTH.
13. Mrs Croft points to the fact that the pleadings make it quite clear that MTH intends to rely on evidence from RS and PS as to the alleged abuse perpetrated upon them by Mr Croft. She says that with respect to any such evidence, which is relevant to MTH's case on foreseeability of risk of harm, and also on tendency evidence (or both), the death of Mr Croft in the absence of any account from him being available gives rise to an irremediable prejudice.
14. In addition, Mrs Croft points to the following matters: 1. MTH delayed joining the third defendant between when proceedings were first commenced and 2023, during which time Mr Croft died; and 2. the plaintiff's claim relies upon an implausible duty of care which is said to be antecedent to the fostering of the plaintiff by Mr and Mrs Croft, and which is incoherent with the provisions of Child Welfare Act dealing with responsibility for, and care for wards of the State ,and also with the duty of care pleaded against the State. Mrs Croft submits that the pleading does not allege any "complicity or assistance" by Mrs Croft in any of the instances of abuse which the plaintiff pleads against Mr Croft.
15. As well, Mrs Croft submits that the FASOC, at least in respect of some of the particulars of breach of duty, are vague and ill-defined.
16. Further, Mrs Croft points to the fact that there is no pleaded case asserting causation of the kind sufficient to satisfy s 5D of the Civil Liability Act 2002.
17. Counsel for Mrs Croft accepts that such pleading defects would justify a strike out of the FASOC, but not, without more, a permanent stay. However, he does submit that given the fact that the pleading is so obviously deficient, it suggests that the plaintiff is unable to formulate a proper claim against Mrs Croft. Counsel points to the incoherence of the alleged duty and submits that such difficulties in the FASOC magnify her prejudice in attempting to meet the claim against her.
18. Finally, Mrs Croft submits that the claim is a wholly futile one. She points to the fact that on a prima facie level, the claim is statute barred and not maintainable. She notes that the ultimate bar of 30 years imposed by s 51 of the Limitation Act 1969 would have expired in no later than August 2010 if one calculates the ultimate bar from the time of the plaintiff's majority, rather than from the dates of the assaults upon her. She notes that nothing turns on the differing calculations dates because the claim is unarguably out of time.
19. Mrs Croft submits that the only means by which the plaintiff can maintain this claim against her is to obtain the benefit of the abolition of the limitation period by s 6A of the Limitation Act. She contends that upon a proper interpretation of the provisions of s 6A, it only applies to abolish the limitation period when the alleged abuse is perpetrated by the person sued - here, Mrs Croft. She submits that as there is no allegation that she perpetrated sexual abuse or serious physical abuse on MTH, it could only be that her conduct constituted "connected abuse" if the provisions of s 6A are to be engaged. She submits that, on any view of the pleading, none of the asserted breaches of duty involve positive actions directed to MTH by her, and so could not constitute connected abuse.
20. By reference to this analysis, Mrs Croft submits that the claim against her by MTH is futile, and that such futility supports her claim for a permanent stay.

Submissions of MTH

1. MTH submits that Mrs Croft has failed to discharge her onus of proving that the circumstances of this matter are sufficiently exceptional, even if some prejudice is demonstrated, to amount to proof that a permanent stay is necessary to avoid the hearing of the proceedings being an abuse of process.
2. MTH submits that the context in which the Court ought consider and assess the relief sought on the Motion is this: 1. first, a defence has not yet been filed by Mrs Croft and as a consequence, at least by reference to the pleadings, the issues which are to be determined, and against which the existence of, and assessment of the extent of any prejudice is to be measured, are not defined; 2. secondly, Mrs Croft gives no evidence on the Motion about any of the factual matters covered in the various statements served by MTH in the course of these proceedings, or else, the sworn evidence given at the trial of the late Mr Croft by RS and PS, and MTH herself; and 3. finally, the evidence, as set out in [11], demonstrates that by at least March 2014, Mrs Croft became aware of allegations which had been made involving both Mr Croft and her. She retained a solicitor with respect to those allegations, and no doubt, together with her husband gave him instructions about them. She has not waived privilege with respect to any of her communications with that solicitor. By reason of her choice to maintain privilege, the extent of her earliest response to the allegations, and her knowledge of the earliest response of Mr Croft to the allegations remains unrevealed.
3. MTH submits that Mrs Croft is obviously well capable of giving evidence without any cognitive or other memory defect and is well capable of giving instructions to the lawyers she has retained to represent her in these proceedings. MTH points to the transcript of the evidence given by Mrs Croft during the criminal trial of Mr Croft as demonstrating that, at the time of the trial in 2019, the third defendant was able, and had a sufficient memory of events to enable her to give a complete account of the facts and circumstances surrounding the presence of MTH on the property during the period of 12 months or so whilst she was there.
4. Insofar as Mrs Croft seeks to rely upon the absence of Mr McIlveen as a witness, the plaintiff submits that the fact is that the Departmental file has been produced, and it includes reports, correspondence and notes made by Mr McIlveen with respect to the plaintiff's life with her previous foster parents, the circumstances of her transfer to Cleggswood, and the supervisory consultations and visits carried out by Mr McIlveen to review MTH's placement with Mr and Mrs Croft. She submits that there is no obvious incompleteness of the file, and that the contents are generally favourable to Mrs Croft in her defence of the proceedings. "MTH accepts that the death, and consequent unavailability of Mr Croft to give evidence is a matter of prejudice to the case of Mrs Croft. But she submits that such prejudice as does arise from his death, does not directly adversely impact on the facts and circumstances surrounding the knowledge of Mrs Croft herself, and what she did in fact do (or not do) to MTH. MTH submits that only Mrs Croft can give direct evidence of these matters. Putting it differently, the plaintiff's contention is that the evidence of Mr Croft would only touch a part of, and not the entirety of, the pleaded cause of action."
5. Ultimately, MTH seeks to persuade the Court that because Mrs Croft can fully participate in any hearing by giving evidence, and because she can provide proper instructions for the filing and propounding of a defence, any hearing of these proceedings is nothing more than an example of an imperfect, although a fair trial. She submits that this trial falls within the description given by the High Court of Australia in The Queen v Edwards [2009] HCA 20 at [31]: "The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair."
6. Insofar as Mrs Croft relies upon the limitation defence or the novelty or incoherence of the duty of care pleaded, the plaintiff submits that none of those matters are relevant considerations in determining whether any trial of the pleaded cause of action would not be a fair one or else would be an abuse of process. MTH submits that such a determination must be made by reference to the case as brought whether it be legally or factually strong or weak. In addition, MTH submits that the arguments of Mrs Croft are not so clear as would result in a summary dismissal application succeeding and, therefore, there is no reason on that account to preclude her from putting her cause of action before the Court for a full hearing.

Discernment

1. I am unpersuaded that Mrs Croft has discharged her onus of persuading me that all of the facts and circumstances constitute an exceptional case of the kind necessary to justify an order permanently staying the proceedings.
2. Mrs Croft is of full capacity and is able to give evidence in response to the allegations including all of the surrounding facts and circumstances. She is able to provide full and complete instructions to her lawyers with respect to the defence of the claim. There is no material before me which suggested that she is any way impaired in her memory of the events during the time of MTH's residence with her and Mr Croft at Cleggswood. She was able to give a full, frank and complete account in evidence at the criminal trial of Mr Croft in 2019. Counsel for Mrs Croft did not make any submission by reference to any part of the transcript of the criminal trial that Mrs Croft demonstrated any inability to give appropriate evidence in answer to any question. On my examination of the transcript of Mrs Croft's evidence at that trial, I could not see any question asked of Mrs Croft which she was unable to answer because of a lack of memory or any impairment of her cognition.
3. The impression I obtained when reading the transcript was of a person whose recall of events of the time, her knowledge of the character and behaviour of her husband, and any of the relevant surrounding circumstances, was clear and unequivocal. As well, her evidence at the criminal trial extended to contradicting the evidence of the twin boys, RS and PS, who gave evidence at the trial.
4. I can see no impediment of any kind to Mrs Croft's full and complete participation in the trial of these civil proceedings, including fully instructing her lawyers.
5. I accept that the death of Mr Croft means that any evidence which he is capable of giving directly about the assaults of which he is accused by MTH will not be available to Mrs Croft. However, I note that Mr Harris, his solicitor at the trial, is alive and maintains his file of the criminal proceedings. He is unwilling to make it available because he, entirely properly, asserts that the contents of it are privileged and that he has no instructions contrary to the maintenance of that privilege. So much may be accepted. Whether that position will change in the future if probate is granted of Mr Croft's will cannot be known. Whether MTH or Mrs Croft could argue that the death of Mr Croft and the absence of any executor of his Estate, is sufficient for the Court to hold that the privilege is no longer maintained, again, is not a matter to be determined now for the purposes of this Motion.
6. It is clear that Mr Croft was fully informed of the allegations being made against him alleging abuse by him of RS and PS, and also of MTH, many years before he died in the context of the police investigations. Having been provided with the brief of the prosecution evidence against him, he was able to instruct lawyers to defend the criminal proceedings. It is also clear that he was fully informed of the allegations being made in these proceedings and was able to instruct lawyers to file a defence.
7. Section 63 of the Evidence Act 1995 provides for an exception to the hearsay rule in civil proceedings in circumstances where a person is unavailable (as plainly Mr Croft is). It would be open to Mrs Croft to adduce evidence by way of first-hand hearsay of what Mr Croft had told anyone, including Mrs Croft, or any of the good character witnesses called in the criminal trial in non-privileged circumstances, about the allegations against him. In the absence of evidence to the contrary from Mrs Croft, I would be prepared to infer that Mr Croft is likely to have made statements about his attitude towards the allegations to other people. The availability of any such statements goes some distance towards mitigating the prejudice which Mrs Croft may encounter in the hearing of this matter by reason of her husband's death.
8. However, what is apparent, is that each of RS and PS, and MTH were thoroughly cross-examined at the trial by counsel retained for the late Mr Croft. The transcript records the propositions which were put to each of those witnesses by counsel instructed by Mr Croft. There is no evidence that counsel at the trial had put propositions which were inconsistent with his instructions. Accordingly, I would infer that the propositions put by counsel represented the case that Mr Croft would have advanced if he were able to give evidence in these proceedings.
9. In those circumstances, whilst there is an obvious prejudice from Mr Croft's absence, I do not think that when viewed together with all of the other available evidence going to his conduct and the surrounding circumstances, including steps which can be taken to lead indirectly some of the evidence which he was capable of giving, prejudice with respect to the absence of Mr Croft as a witness is such as would make the trial of these proceedings an unfair one.
10. Whilst Mrs Croft submitted that the absence of the availability of any evidence from Mr McIlveen by reason of his death was a significant prejudice to the conduct of her case, I am not so persuaded. The records of Mr McIlveen's observations, opinions and statements of fact which he could give in evidence at a hearing are contained in the Departmental file - the contents of which would, I would expect in the ordinary course of a hearing, be admissible as business records by reason of s 69 of the Evidence Act. Again, whilst I accept that there may be some prejudice created by the absence of Mr McIlveen as a witness, because he cannot expand on the matters he has documented or discuss the character of Mr and Mrs Croft, in my assessment that prejudice is of a relatively low level because of the contemporaneously created records, and the availability of other witnesses capable of giving any tendency or good character evidence about Mr Croft.
11. The submissions of Mrs Croft pointed to a range of other potential witnesses such as neighbours or friends who visited Cleggswood or else who interacted with the Croft family (including MTH) who were unable to be found or who no longer had any relevant evidence to give because of the lapse of time since the events. However, it is far from certain or indeed clear, on even a prima facie level, that many of those witnesses would have had any relevant evidence to give. The circumstances where the events occurred were in a rural location. Neighbours in a rural location do not live as close to each other as they would do in urban areas. They are far less likely to have heard or observed anything untoward than might be the case in more urban areas.
12. I am also influenced in coming to my decision by the fact that Mrs Croft has available to call at any hearing, witnesses who were called during the criminal trial, namely foster children who lived at the Croft's property, Cleggswood, who were able to give evidence touching upon the good character and the absence of any tendency to engage in sexual or physical assault or other forms of violence of Mr Croft, his behaviour towards them, and the way in which they were raised whilst staying with Mr and Mrs Croft. Significantly, as appears from the transcript of the criminal trial, this evidence describes the complete absence of any conduct of a kind which approaches the physical and sexual assaults alleged by the plaintiff or any other form of violence.
13. Leaving aside the legal questions to which Mrs Croft pointed, namely, the novelty and incoherence of the duty of care, and the strength of any limitation defence, the picture presented of what would transpire at the future hearing of this civil claim does not suggest a trial of a kind which would be an affront to the administration of justice, or which would be an abuse of process. I accept, as I have earlier noted, that the trial would not be a perfect one measured by the availability of all available witnesses and documents. But that, of itself, is to be regarded as an ordinary incident of any trial because as the High Court noted in Edwards at [37]: " … Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die."
14. The deficiencies identified for a hearing of these proceedings and the prejudice thereby created are, in my assessment, not sufficient to justify the grant of a permanent stay. On the available evidence about the conduct of the trial, I am not persuaded that any prejudice which Mrs Croft would suffer would enable these proceedings to be characterised as sufficiently exceptional to warrant an order being made for a permanent stay.
15. With respect to the submissions of Mrs Croft about the strength of the plaintiff's pleaded cause of action, it is my view that even if that assessment is a relevant factor to consider, it is not a matter, in these proceedings, of any significant weight. I am of the same view with respect to any argument which may be relied upon about the Limitation Act.
16. There are a number of reasons why I come to those conclusions. First, in the absence of pleadings by way of a Defence and any Reply by MTH, it is not possible to know what issues are in fact joined, and therefore whether there are any legal issues which will be raised at any ultimate hearing of these proceedings. Whilst counsel for Mrs Croft sought to argue that these matters would be relevant, it is hard to know that that must be so in the absence of a complete set of pleadings.
17. Secondly, even if I were to assume that a Defence would be filed which reflected the arguments that counsel put on this Motion, in my view, before these matters would be relevant or of any significant weight on the Motion, I would have to be persuaded of the overwhelming strength of the legal arguments of Mrs Croft that the plaintiff could not succeed on her claim.
18. In my view, if these matters have any relevance to this determination, they ought properly to have been raised by way of a summary dismissal application in the ordinary way. Were this to have occurred, Mrs Croft would be confronted by the restrictions on the grant of summary disposal, the epithets of which are well known, and accordingly, which would be relevant to any assessment which I would undertake of the weight to be accorded to those factors.
19. I note that a court is ordinarily reluctant to summarily dismiss a matter involving a novel duty of care: see Gibson v Parkes District Hospital (1991) 26 NSWLR 9 at pp.17 and 23. The same approach would be taken to arguments about the incoherence of the nature and content of the pleaded duty of care when compared with any other existing duty of care or statutory scheme.
20. Insofar as the plaintiff relies upon s 6A of the Limitation Act as being applicable to defeat the expiration of any limitation period, and Mrs Croft resists such conclusion, a determination of such an issue would require this Court to examine the text, context and purpose of the statute in order to reach the proper interpretation of the terms of the section. It is sufficient for me to say that, in my view, particularly having regard to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [87], where it was said that the interpretation of a phrase in legislation such as "relate to" is "… a matter for judgment depending on the facts of the case", Mrs Croft would find it difficult to persuade any court that summary dismissal ought be given on the limitation issue raised in argument. However, as the proper interpretation of s 6A remains a matter in respect of which an application may be brought in the future, or else would need to be finally determined at a final hearing, I simply indicate as part of this decision that I am unpersuaded that the matter dealing with the Limitation Act is one, on the evidence before me on this Motion, that is so obviously amenable to a summary dismissal application that it carries significant weight in deciding whether to grant the orders sought in the Motion..
21. For all of these reasons, I concluded that it was appropriate to make orders dismissing the Motion.

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: 15 September 2023